Among other things, the coronavirus pandemic is causing many people to think about their own mortality. A lot of folks have known for years they need get their affairs order. They are now feeling the need to do so with great urgency. For example, one representative story that has been making the rounds is headlined: “Nurse: I’m 28 and writing my will”.
Many lawyers have been trying to figure out how clients can sign legal documents while social distancing. This is especially true for clients ages 65 and up. Senior citizens make up the majority of people looking to write wills. As we all know, experts say seniors are at higher risk of life threatening complications from coronavirus.
Cohen & Winters is doing our part to socially distance. Our team is, by and large, working remotely and we have closed our physical office. Consistent with recommendations, we plan to continue to do so until at least early May.
Remote signing of documents
The good news is that, while working remotely, we can easily prepare and explain documents. And most papers that we work on don’t need to be signed by the client or notarized. We can easily handle that by email.
Some documents, however, do need to be notarized or witnessed. These present the problem. Asking staff members and clients to meet in the office goes against the recommendations.
What is the best way to handle remote signing of documents?
Notarizing by video
One of the Governor’s emergency orders allows for notaries to witness documents by video. This is great for many situations. Video will not work for wills, however. State law requires that a person signing a will do so “in the presence of” two witnesses. Using video would risk a court rejecting the will later.
The problem is therefore that, for the same reason that many people want a will done right now, it is the trickiest time to do it.
Many lawyers have been discussing this problem and offering creative ideas.
One idea is that the person signing the will have two witnesses at their home, people that the client is already isolating with. The lawyer could then conduct the will signing by video but the witnesses would be on-site. After the signing, the client would mail copies back to the law firm to preserve.
One possible problem with this idea is that the law firm has less control over the paperwork. When we do will signings, we like to get everything copied and scanned immediately, giving the client back the originals. We have the machines and experience to make sure nothing slips through the cracks. Even organized clients might miss a certain document. The law firm would not find out until after getting the mail, possibly having to repeat the entire process.
Another problem with this approach is that beneficiaries in a will cannot be witnesses.
Witnesses must be “disinterested.” Yet groups isolating together are usually family members. There is a good chance that nobody who meets the “disinterested” standard will be available.
The great outdoors
Another solution has been having the will signed outside on a table or bench. The client will sign the papers while the witnesses watch from a distance. Each witness will then sign the documents in turn after the client has stepped back.
This can work but does not strictly comply with the social distancing guidelines. Also, it requires decent weather. Rain or wind could make this impracticable. Because of multiple schedules, this makes it hard to coordinate the signing in advance.
Peering through windows
Yet another proposal has been for the client to sign the documents at their home, while the witnesses watch through a window. After the signing, the client could leave the documents in a mailbox for the law firm staff to review for completeness.
A drawback to this approach is that most law firms charge extra for travel time and costs. These could be significant if the client lives in a rural area.
How are we going to handle this?
Right now, we are preparing estate planning documents with the idea that we will sign them in a normal way once the pandemic has peaked, and the restrictions are lifted. If a client needs documents completed urgently, however, then we are open to any creative solution for the remote signing of documents that will get the job done while keeping our clients and employees safe.