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Tips for notarizing, executing documents, and other concerns in the age of pandemic

Thursday, June 18, 2020   (0 Comments)
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By Justin Bryan

Months into the COVID-19 crisis, social distancing recommendations continue to impact the legal profession. At-risk groups and certain we all must think creatively about how we practice. The information in this article is intended to help lawyers adjust their practice to operate under the current conditions.

Montana remote notarization

Montana law permits remote notarization of documents. This allows most legal documents to be signed and notarized remotely via electronic communication, with the signer and notary in separate locations. If you are currently a Notary Public you cannot remotely notarize documents unless you have been certified by the Montana Secretary of State to engage in remote notarization. To be certified to remotely notarize you must pass an additional test. For information on the process to become certified to remotely notarize, you may contact Lori Hamm at the Montana Secretary of State’s office. Hamm’s phone number is 406-444-5379.

To give you some insight into the remote notarization testing process, I recently passed my remote notarization exam and the process was not very time consuming. It took me about 30 minutes to study for the exam and 30 minutes to take the exam online. I received my certificate the following day from the Secretary of State’s Office. Signing up for the proper video conferencing software took additional time as there are various options to choose from.

Executing estate planning documents that need witnesses

While most documents can be executed remotely, some documents require witnesses. For estate planning attorneys the Last Will and Testament (which I will refer to in this article as a Will) and the Living Will generally need to be witnessed under Montana law. Remember that Trusts, Healthcare Power of Attorneys, Financial Power of Attorneys and HIPAA Authorizations do not require witnesses under Montana law.

Summary of the Will Execution Requirements:

Although many of you are familiar with the Will execution requirements under Montana law, a summary may be helpful. In general, the Montana Uniform Probate Code requires the following for execution of a Will:

  1. The Will must be in writing;
  2. The Will must be signed by the testator or in the testator’s name by another individual in the testator’s conscious presence and by the testator’s direction; and
  3. The Will must be signed by at least two individuals, each of whom signed within a reasonable time after having witnessed either (a) the signing of the Will as described above; or (b) the testator’s acknowledgment of that signature or of the Will.

See Mont. Code Ann. § 72-2-522(1).

Under the Montana Uniform Probate Code, any individual generally competent to be a witness may act as a witness to the execution of the Will and the signing of a Will by an interested witness does not invalidate the Will or any provision of it. See Mont. Code Ann. § 72-2-525. Furthermore, it is important to note that the witnesses do not need to sign the Will contemporaneously with testator, but instead may sign the Will within a reasonable time after having witnessed either the testator’s signature or testator’s acknowledgment of that signature or of the Will. See Mont. Code Ann. § 72-2-522(1)(c).

A Will that does not comply with the above requirements (including the two individual witnesses requirement) is valid as a holographic Will, witnessed or not, if the signature and material portions of the document are in the testator’s handwriting. See Mont. Code Ann. § 72-2-522(2).
In addition, if a Will was not executed in compliance with the above requirements (including the two individual witnesses requirement), under the Montana Uniform Probate Code the document is treated as if it had been executed in compliance with those requirements if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to constitute the decedent’s Will. See Mont. Code Ann. § 72-2-523. Intent that the document constitute the testator’s Will may be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting. See Mont. Code Ann. § 72-2-522(3).

Although notarization of a Will is best practice in general, it is not required for valid execution of a Will under the Montana Uniform Probate Code. Rather, notarization of the signatures of the testator and the two witnesses on the Will is necessary for the Will to be “self-proved” under the Montana Probate Code. See Mont. Code Ann. § 72-2-524. If a Will is not “self-proved”, it can still be a valid Will, but there may be additional proof requirements if the Will is later the subject of formal probate. See Mont. Code Ann. § 72-3-321.

Will and Living Will execution options for consideration

As noted above, the witness requirement for Wills under the Montana Uniform Probate Code appears to require that the witnesses be physically present with the testator to witness the testator either signing the Will or acknowledging of that signature or the Will. Similarly, the witness requirement for a Living Will under Montana law may also require the physical presence of the witnesses at the time the Living Will is executed. See Mont. Code Ann. § 50-9-103(1). Thus, under the existing Montana statutes and caselaw, even with Montana’s remote notarization statutes, we cannot fully execute a Will or a Living Will remotely without some uncertainty and risks to our clients.

In light of these circumstances, the BETTR Section executive committee has identified the following options for consideration in conducting estate plan signings in light of the COVID-19 crisis. However, these options are not all inclusive, and attorneys should consider whether these options or alternative procedures for estate plan signings are necessary or advisable under their particular circumstances. Alternative procedures for estate plan signings may certainly also be protective and valid under Montana law or otherwise necessary or advisable under the particular circumstances. Furthermore, as we have all witnessed in recent days, the COVID-19 crisis is very fluid and new federal, state or local directives or recommendations or new medical guidance may certainly make additional precautions or alternative estate plan signing procedures necessary or advisable under the circumstances.

Medical guidance concerning transmissibility and best practices to stay safe is constantly changing. Nothing in this email is to be interpreted as medical advice. You will need to stay informed as to as new medical guidance is issued and may need to modify the below to account for said new advice. Furthermore, it is important that both you and your clients understand the inherent risks in using any of the estate plan signing options discussed in this email.

Physical presence witnessed signings/drive-by signings

Prior to the COVID-19 crisis, clients typically signed their estate plan at the attorney’s office in the physical presence of two disinterested witnesses and a notary from the attorney’s office.

During the COVID-19 crisis, attorneys or their clients may prefer not to sign estate plan documents at an attorney’s office. In such case, attorneys should consider whether signing the estate plan documents at the client’s house, a parking lot or other location is advisable. If so, a notary and two witnesses can drive to the client’s house or other agreed location and conduct the signing on their front porch, or other appropriate space. This approach allows you to be comfortable that you have a properly executed and witnessed estate plan. A few tips for consideration:

  • Witnesses and notary should drive in separate vehicles
  • Get folding tables that can be placed in the back of your vehicle. Ideally the clients, the witnesses and the notary would all have separate tables. Small tables that can be used for signing can be found for around $25 dollars on Amazon.
  • Use gloves and clean the surface of the tables before and after each signing.
  • Set-up the tables such that everybody is standing at a safe distance.
  • Provide new pens to the clients for the signing and the clients will keep their pens after the signing (or have the clients use their own pens).
  • Separate the signature pages so that multiple parties are not signing on the same page.
  • Provide a folder for the clients to place the documents in after they have signed.
  • Provide a folder for witnesses and notary to place the documents in after they have signed.
  • Collect the folders after the signing and put them in a bag. Leave the folders in the bag for at least 72 hours before assembling the estate plan. Note: the 72 hours is a general guideline and is not offering any medical advice or representation that after 72 hours the documents will be safe if they were contaminated by COVID.

If due to the COVID-19 circumstances your client cannot safely execute his or her Will in the physical presence of two disinterested witnesses and a notary from your office as described above, but your client has at least two other individuals available to serve as witnesses at his or her house or health care facility, consider sending the estate plan documents to your client with execution instructions to execute the Will and Living Will at his or her house or health care facility in the physical presence and hearing of the two individuals who sign the Will and Living Will as witnesses (as noted above, the individual witnesses for the Will do not need to be disinterested persons and can be any individual generally competent to be a witness, whether a family member, a neighbor, or a health care professional). If you are unable to be physically present at the execution of the estate plan documents, you may consider participating remotely in the execution process on the telephone or by an audio-visual app (e.g., Facetime, Zoom, Skype), but with the two individual witnesses in the physical presence and hearing of the testator during the execution of the Will and Living Will. In such case, if a notary is not available at the testator’s residence or facility or remotely as discussed above, you might consider providing your client with options to schedule an appointment at your office when safe and COVID-19 restrictions have lifted to complete a “self-proving” affidavit in front of your notary and two individual witnesses in accordance with Mont. Code Ann. § 72-2-524, if he/she would like.

Options for consideration when physical presence of witnesses is not possible:

The risks presented by the current COVID-19 pandemic, and the restrictions of the state-wide stay at home order, in conjunction with social distancing standards, present logistical challenges to execution of Wills and Living Wills in compliance with the two individual witnesses requirement discussed above and notarization of the Will as required for a “self-proved” Will.
When it is not possible to have your client sign his or her Will in the physical presence of two individual witnesses (whether at the attorney’s office, at the client’s home, a health care facility or other location) as discussed above, you should consider other options that may be appropriate or advisable under the circumstances, including the following:

  1. Using a Revocable Trust under the Montana Uniform Trust Code prepared by the attorney and signed by your client, as well as a holographic pour-over Will written and signed by your client in his or her own handwriting. (In addition, consider having two individuals remotely witness the execution of the revocable trust and the holographic pour-over Will, as discussed further below.)
  2. Using a holographic Will written and signed by the testator in his or her own handwriting. (In addition, consider having two individuals remotely witness the execution of the holographic Will, as discussed further below.)
  3. Having two individual witnesses (preferably in the same location) remotely witness by audio-visual medium (e.g., Facetime, Zoom, Skype) your client’s execution of the Will. In such case, you should ensure that everyone can see each other and no one goes off camera, and consider asking whether others are in the room with your client (and, if so, what their relationship is to your client).

CAUTION! Witnessing remotely under the current Montana Uniform Probate Code and Montana caselaw may not satisfy the two individual witness requirement under Mont. Code Ann. § 72-2-522(1). Some practitioners believe that it is unclear under the current Uniform Probate Code and Montana caselaw whether the two individual witness requirement under Mont. Code Ann. § 72-2-522 could be satisfied by remote witnessing by an audio-visual medium (such as Facetime, Skype, or Zoom), while many practitioners believe that the physical presence of the witnesses is required. However, even if remote witnessing does not satisfy the two individual witness requirement, remote witnessing may lend support to establishing by clear and convincing evidence that your client intended the executed Will to constitute his or her Will under Mont. Code Ann. § 72-2-523. To further fortify your clear and convincing evidence, consider asking your client for permission to record the video conference. In addition, consider having your client write, in his/her own handwriting, either in the left-over space left at the bottom of the last page of the Will , or on a separate page to attach to the Will, a statement to further support clear and convincing evidence along these lines:

I, [Client’s Name], intend the foregoing [or attached] instrument dated ____________, 2020, to constitute my valid Last Will & Testament. Due to the COVID-19 pandemic, I am unable to sign (or I have determined that it is not safe for me to sign) my Will in the physical presence my two individual witnesses. However, my attorney, [attorney’s name], [and ___________] have remotely witnessed my signing of this Will by [Facetime/Skype/Zoom, etc.].
[Client Signature and Date]

In addition, the individual witnesses should sign a counterpart to the Will noting that they remotely witnessed your client’s execution of the Will. Additionally, as soon as practical after remotely witnessing your client’s execution of the Will, consider having each individual witness execute an affidavit outlining that due to the COVID-19 pandemic, the client determined that he or she was unable to sign (or it was unsafe to sign) the Will in the physical presence and hearing of the two individual witnesses under the circumstances, that the individual witnessed the client sign the Will remotely by specified audio-visual medium (e.g., Facetime, Skype, Zoom, etc.), and the client acknowledged to the individual witness that he or she intended the Will to constitute his or her valid Last Will and Testament. If possible, the individual witness should have the affidavit notarized (or remotely notarized, as described above) and, if a notary is not available at such time, consider securely emailing the affidavit to yourself for time-stamping purposes. 

Finally, with all of the options described above when the physical presence of two witnesses at your client’s execution of the estate plan documents is not possible, you should schedule with the client an appointment on your calendar to meet with you and two individual witnesses in person as soon as it is possible to re-execute the Will in the physical presence and hearing of two individual witnesses and a notary.

Justin Bryan is an attorney from Bozeman. He is the chair of the State Bar of Montana’s Business, Estate, Trusts, Tax & Real Property Section.