By Daniel R. Bernard, Associate
Once again, as you read this article, I hope you and your family are well. I am writing this article as partial update to my article entitled “Estate Planning During the Novel Coronavirus Pandemic”, wherein at the end of the article I addressed how you can get your estate plan in place under the coronavirus mandated quarantines. In that article I stated that holding virtual signings, where your estate planning documents are executed via FaceTime, Zoom or Skype, is not valid witnessing, and that those documents would be invalid in New York State. Well as of April 7, 2020, and until, May 7, 2020, that is no longer the case.
On April 7, 2020, Governor Andrew Cuomo signed Executive Order No. 202.14, which among other things, allows for witnessing of estate planning documents using “audio-video technology.” Specifically, the relevant portion of the Executive Order states:
• For the purposes of Estates Powers and Trusts Law (EPTL) 3-2.1(a)(2), EPTL 3-2.1(a)(4), Public Health Law 2981(2)(a), Public Health Law 4201(3), Article 9 of the Real Property Law, General Obligations Law 5-1514(9)(b), and EPTL 7-1.17, the act of witnessing that is required under the aforementioned New York State laws is authorized to be performed utilizing audio-video technology provided that the following conditions are met:
o The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
o The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
o The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
o The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
o The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.
The Executive Order is clear, and does not leave any ambiguity as to how to effectively execute your estate planning documents via video chat. Step one, establish a video conference using video conference software that you and your attorney feel comfortable using. This video conference must be live, you cannot send a video to your witnesses of you executing your estate planning documents. Step two, have two witnesses also appear on the video conference. Step three, if you do not personally know the witnesses, show your driver’s license or other government ID to the witnesses on the video conference. Step four, execute the estate planning documents, as per your attorney’s instructions. Step five, transmit the signature pages to the witnesses as soon as you sign them; your witnesses must receive a signed copy that day. If you have the ability to scan your documents, you can send them via email to the witnesses. If you and your witnesses have the ability to send and receive faxes, you can fax the signature pages. If all else fails, taking a picture on your phone and texting or emailing it to your witnesses will suffice. Step six, your witnesses must then print and sign the signatures pages you sent them and send the signed pages back to you. Lastly, the Executive Order allows for your witnesses to sign your original estate planning documents, i.e. the one’s you signed and emailed, as of the date you signed them, as long as you send the witnesses the original signature pages and the electronic copies within thirty days. So, the best practice would be, if you are comfortable with mailing the originals, to sign all of your documents and then mail them to your witnesses. Additionally, it is advisable to redo the execution of your estate planning documents once the novel coronavirus pandemic has ended and social distancing and self-quarantines are distance memories.
One final note, this Executive Order is only valid through May 7th. Whether the provisions of the Executive Order are extended beyond May 7th, and, even if extended, whether the remote witnessing provisions of the Executive Order are extended past May 7th is anyone’s guess. So, having your estate planning documents witnessed remotely in the next month may be critical.
The estate planning attorneys at Twomey, Latham, Shea, Kelley, Dubin & Quartararo have the ability to prepare and execute all estate planning documents remotely, and are available at your convenience, to meet via teleconference, FaceTime, Skype, or whatever other means you feel comfortable, to answer your questions, review your current estate plan to ensure it continues to meet your needs or to discuss the implementation of an estate plan, as well as to safely remotely execute your estate plan.
Please be well and stay safe.