Signing Estate Planning Documents Remotely – A New Normal?

With the uncertainty that the pandemic has brought to our current situation, many individuals have taken the time to review their estate planning documents and determined that they need to make some changes. The challenge that has presented itself during these trying times is that people have determined that they want to make changes to their documents, but their attorney’s physical office is closed and face-to-face meetings to sign documents cannot happen. While this may not be the time to make non-urgent changes to documents, for those that need to make changes, such as frontline workers or those that are ill, either their own illness or the illness of someone named in their documents who needs to be replaced, the ability to sign new documents is essential.

Michigan did have in place the ability to have a document notarized remotely, but only a handful of vendors were recognized by the State to perform notary services remotely. The pandemic created a need for more notaries that have the authority to notarize virtually along with the need to be able to remotely witness the signing of documents. Therefore, with the help of the State Bar of Michigan’s Probate and Estate Planning Section, Elder Law Section, and many others, Governor Whitmer signed Executive Order No. 2020-41 on April 8, which temporarily allows, among other provisions, remote witnessing and notarization of legal documents. This order will remain in place until May 6, 2020. The possibility that this order will be extended is considerable due to the many questions that remain about when Michigan businesses can return to business as usual.

The following is a summary of sections of the order that address remote notarizing and witnessing requirements:

Any notary who currently holds a valid notarial commission in Michigan may provide a notarial act utilizing two-way real-time audiovisual technology ( e.g. Zoom, GoToMeeting), provided that:

The two-way real-time audiovisual technology must allow direct interaction between the individual seeking the notary’s services, any witnesses, and the notary. A conference call is not sufficient. All parties must be able to see and speak to each other.

The notarial act must be recorded and saved for ten years. Whatever audiovisual service is chosen must have the capability to be recorded.

The individual seeking the notary’s services and any witnesses, if not personally known to the notary, must present evidence of identity during the conference. This can be accomplished by having the individual and the witnesses hold up a copy of their driver’s license or passport to the camera so the notary can identify them.

The individual must state that he currently is located in Michigan or if he is not currently located in Michigan during the signing, he must state that the document to be signed either is subject to the jurisdiction of the State, or involves property located in the State.

The individual, the witnesses and the notary must be able to sign the documents in a manner that would show any subsequent change or modification of the remote notarial act to be tamper evident.

The individual or the individual’s designee must send to the notary the entire signed document the same date it was signed. The document can be sent via fax, mail or electronically. Many drafting attorneys will offer to be the individual’s designee and take the responsibility that the documents are passed on to the witnesses and notary who, most likely, are part of the attorney’s staff.

Once the notary receives the copy with all necessary signatures, the notary must notarize the document and send it back to the individual or the individual’s designee.

The official date and time of the notarization is the date and time when the notary witnesses the individual sign the documents.

The requirements for witnessing remotely are similar to the notary requirements in that two-way audiovisual technology must be used, the individual must present evidence of identity, the individual must state he is located in Michigan, or the documents are subject to Michigan jurisdiction. Additional requirements for witnessing are:

The witnessed act must be recorded and saved for three years.

The individual must state to the witnesses during the meeting what document he is executing.

Each title page and signature page of the document being witnessed must be shown to the witnesses via the camera so that the witnesses can clearly identify the document, and every page of the document must be numbered with both the page number and the total number of pages of the document.

Each signing of the document must be viewed up close for the witnesses to observe.

The individual or his designee must send the entire document to the witnesses within 24 hours of when the document is executed.

Within 24 hours of receipt, the witnesses must sign as witnesses and return the signed copy back to the individual or the individual’s designee.

There are a few challenges for complying with these requirements. The individual needs access to a computer, phone, etc. with a camera and needs to know how to use it. For those that have tried to set up a Zoom call with an elderly friend or family member, they know this can be difficult. Additionally, if the individual signing documents does not have a scanner or fax at home, he needs to be able to mail documents back the same day as the day of signing, so pre-addressed and postage prepaid envelopes may ease that burden.

The easiest way to sign the documents and return them to the notary and witnesses is through the use of some form of electronic signature such as DocuSign. The documents can be sent from the attorney to the individual electronically. The individual can nominate his attorney as his designee to forward the documents on to the witnesses and notary. Once the individual signs electronically during the audiovisual call, the documents will be sent back to the attorney electronically who will have the witnesses and notary sign. Once these steps have all been completed, the fully executed documents can be sent back to the individual.

While the order is only temporary, the feeling certainly is that the option for electronic signatures, and virtual witnessing and notarizing will be a permanent part of our estate planning future. What clients, attorneys and, notaries learn through this trial period will form best practices and most likely, will be the foundation for permanent legislation.