04.20.2020 Signing Estate Planning Documents During the COVID-19 Pandemic By: Daniel J. Durst

One of the most common questions being asked of estate planning attorneys lately is: “Is it possible to sign my will during the COVID-19 quarantine?”  The same question can be asked with respect to other common estate planning documents, such as trust agreements, durable general powers of attorney and advance medical directives.  Fortunately, options exist in Virginia for creating valid estate planning documents, notwithstanding social distancing requirements.

Basic Requirements for Validity of Documents

To be valid in Virginia, each estate planning document has its own execution requirements.

Typewritten wills generally must be signed in the physical presence of two witnesses.  There is no requirement in Virginia that the witnesses be disinterested.  A typewritten will can be valid in Virginia even if it is signed without witnesses, but additional “clear and convincing” evidence is required in such instances to prove in court after the death of the testator (i.e., the person making the will) that the testator intended the document to be the testator’s will.

Typewritten wills often are accompanied by another notarized, sworn statement called a Self-Proving Affidavit, but the Self-Proving Affidavit is not required for the will itself to be valid.  Rather, the Self-Proving Affidavit can make it slightly easier to have a will admitted to probate after the testator has passed away.

Handwritten wills, known as holographic wills, are valid in Virginia if they are entirely in the testator’s handwriting and signed.  Holographic wills do not require witnesses or a notary to be valid, but the testator’s handwriting must be proved by at least two disinterested witnesses.

In practice, most Virginia trust agreements are signed by the grantor (the person putting property in trust) and the trustee, with the grantor’s signature being acknowledged before a notary.  However, a Virginia trust can be valid without a notary.

Durable general powers of attorney must be signed to be valid in Virginia.  A signature on a power of attorney is presumed to be genuine (which can be important when presenting the power of attorney to third parties) if the principal (the person making the power of attorney) acknowledges the signature before a notary public.

Occasionally, it is necessary to record a power of attorney, trust agreement or certification of trust in land records (e.g., when real estate is transferred using the power of attorney or to or from the trustee of a trust).  In that instance, the document to be recorded must have an original signature that is notarized or proved by two witnesses.

Advance medical directives generally must be signed before two witnesses.  There is no requirement in Virginia that the witnesses be disinterested.  In practice, advance medical directives are also often acknowledged before a notary, but notarization is not required for the document’s validity.

Please note that another State might impose other or additional requirements for creating estate planning documents that will be accepted in that State (e.g., additional witnesses, disinterested witnesses, etc.).  Where property is owned in another jurisdiction, it is particularly important to consult with competent legal counsel for specific advice.

Potential Methods of Executing Valid Documents under Existing Virginia Law

Traditionally, where an attorney has assisted in drafting estate planning documents, those documents are executed in a meeting with the client, two witnesses and a notary (and usually with the attorney functioning either as a witness or the notary).  In such circumstances, the attorney can easily ensure that the documents are executed validly and will be most readily accepted by third parties when the need arises.

In many cases, it is still practicable to execute estate planning documents in the traditional manner but while maintaining a safe distance from one another.  An attorney might oversee the meeting in an over-sized conference room or outdoors (e.g., in a park or the client’s front yard).  Even where the parties are twenty feet apart from one another, they still ought to be considered as being in one another’s physical presence if they are within eyesight and earshot of one another.

Where something like a traditional signing meeting is not possible, an attorney might suggest one of the available alternatives.

With respect to wills, a testator might choose to sign a will with two witnesses but no notary.  There is no requirement that the witnesses be disinterested.  Any other adults quarantined with a testator could function as witnesses, if necessary.

Alternatively, a testator might opt to make a holographic will, without witnesses or a notary.  A holographic will might work particularly well in conjunction with a revocable trust.  A holographic will could “pour-over” the testator’s estate to a revocable trust, which could then function like a will substitute.  Meanwhile, the revocable trust could be typewritten by an attorney and signed by the grantor without a notary and still be valid.

If a testator signs a will with one or no witnesses, the testator’s will might still be admitted to probate in Virginia if it can be proven with clear and convincing evidence in court after the testator’s death that the testator intended for the document to be the testator’s will.  Such proof might take the form of other confirming writings or statements made to credible individuals or video or audio recordings.

With respect to trust agreements, the grantor of a trust can create a valid trust with only the grantor’s signature.  If the grantor wishes to have her signature notarized, the grantor could electronically sign the trust agreement remotely using approved audio/video conference and safekeeping technologies before an electronic notary. Alternatively, a traditional notary (as opposed to an electronic notary) who is personally familiar with the grantor might arrange to receive a grantor’s acknowledgment briefly and at a safe distance in person.  A traditional notary might even receive an acknowledgment in a drive-by meeting where the grantor remains in her vehicle, and the notary interacts at a distance.  The distinction between traditional and electronic notaries in Virginia is discussed below.

A principal can create a valid durable general power of attorney with only her signature.  Most principals, however, will want the presumptive validity of the power of attorney that comes with notarization.  Accordingly, a principal could electronically sign a power of attorney remotely before an electronic notary. Alternatively, a principal might sign before a traditional notary at a safe distance or in a drive-by meeting, as noted above.

Unfortunately, there is no alternative to executing an advance medical directive in the physical presence of two witnesses.  Fortunately, however, it is common for advance medical directives to be available and signed in medical facilities, and the laws on who may act as witnesses are permissive.  Interested persons are permitted to be witnesses to an advance medical directive (including spouses and blood relatives), as are employees of medical facilities.

While the circumstances of the COVID-19 pandemic and corresponding quarantines are of course not ideal, it should still be possible in nearly all instances for an individual to validly execute a will, trust agreement, durable general power of attorney or advance medical directive.  An individual should determine with the assistance of a competent estate planning attorney the most practical, available methods to execute the documents required to achieve the individual’s estate planning needs and goals.  In any instance where documents have not been signed in a traditional signing meeting, it would be prudent to execute the documents again in the traditional manner once it becomes practicable to do so.

Electronic Notaries and Remote Online Notarization in Virginia

Electronic notaries (as opposed to traditional notaries) have been permitted to perform remote online notarizations of electronic signatures in Virginia since 2012.  An electronic notary is a traditional notary who has registered with the Secretary of the Commonwealth and has been commissioned as an electronic notary public.  Electronic notarization can be done remotely using approved audio/video conference and safekeeping technologies outlined in Virginia statutes.  Common videoconferencing applications like Skype and Facetime do not satisfy Virginia’s electronic notarization laws.  The Secretary of the Commonwealth recently released additional guidance relating to becoming and operating as an electronic notary.

Traditional notaries are not permitted to perform remote online notarizations in Virginia.  Traditional notaries may take acknowledgments and affirmations only in the physical presence of the signer in Virginia.

Virginia law clearly allows electronic signing and electronic notarization of trust agreements and durable general powers of attorney.  It is not clear whether Virginia law allows electronic signing and electronic notarization of a Self-Proving Affidavit to a will, due to language in the statutory form Self-Proving Affidavit that provides for the Affidavit to be made in the notary’s “presence.”

Some States have enacted emergency legislation, or have governors who have issued executive orders, making it possible for individuals, witnesses, and traditional notaries to execute estate planning documents in those States using common videoconferencing applications.  Specific requirements under those States’ acts and executive orders vary.

Neither legislation nor an executive order has been issued in Virginia that would allow remote online notarization by someone who is not an approved Virginia electronic notary or remote online witnessing of estate planning documents.  A legislative change or executive order in this area could alter the status quo in Virginia with little notice.

Those who might utilize remote online notarization without an electronic notary or remote online witnessing in Virginia based on a future executive order should satisfy themselves that the executive order legally authorizes such actions contrary to existing Virginia law.  Documents executed in a manner contrary to the law might not be accepted and might create additional complications.  Attorneys implementing remote online notarization without an electronic notary may wish to confirm that such acts are not excepted from their malpractice insurance coverage.

Please note: This alert contains general, condensed summaries of actual legal matters, statutes and opinions for information purposes. It is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel. 

Please click here for additional legal updates from Williams Mullen regarding COVID-19.