More and more people have been considering their estate plan since the COVID-19 pandemic first began. A last will and testament is one major way to plan for your future and what happens to your assets when you die, and while you can create wills and other estate planning documents (like living wills, health care proxies, and powers of attorney) online, they must all be properly executed according to state law before they become valid.
In most cases, a will is only valid if it has been signed by two witnesses. In addition, you may choose to get it signed by a notary public, which will “self-prove” the will. When your will is self-proved, that means your witnesses don’t need to provide in-court testimony during probate. This can protect your estate from a situation where your witnesses are unavailable after you die.
This crisis has made it difficult to get witnesses and a notary together, while businesses are closed and people are in self-quarantine. However, there are ways to execute your will during the coronavirus and even get it notarized from afar.
We’ll guide you through how to execute your will during the pandemic so you can make sure your will is legally enforceable.
You can create an online will but it generally must be printed, signed, and witnessed in order to be valid. You don’t need notarization to make your will valid.
Other estate-planning documents like advance directives and powers of attorney may also require proper witnessing and can require notarization to be valid.
You can sign your will in the presence of witnesses, without the witnesses being too close to you (and, in some states, they can even witness remotely during the pandemic).
You may be able to get documents, including your will, notarized remotely if your state allows it — make sure you understand your state’s rules.
Writing a will during coronavirus
If you’re social distancing during the COVID-19 pandemic, a lawyer can help you draft a will over the phone or through a video conference. You can also use various will-writing programs and templates to make a will online. Just make sure that you are clear and unambiguous in your instructions. A good lawyer or will-writing service should try to steer you clear of any contradictions. If there are ambiguities or inconsistencies, then your will might be contested or challenged during probate after you pass away.
How to witness a document remotely during the coronavirus pandemic
Your will won't be legally valid unless it is witnessed and signed by two people who do not stand to benefit from it. Most states require everyone to be physically present at the same time during the witnessing. In some states, the testator (the person who writes the will) can attest to the witness that it is their will and signature after the fact.
Finding and meeting with disinterested witnesses is difficult and hazardous during the COVID-19 pandemic, but there are creative ways around social distancing.
You can ask your neighbors to watch you sign, and vice versa, from at least six feet away or even through a closed window of your house or car. You and the witnesses can sit in your respective vehicles, passing the documents while wearing gloves, or leaving it at a safe distance on a surface close to everyone. Everyone should bring their own pens.
Remember that witnesses can still do their job — confirm your identity and that the will is yours — without being too close to you. Some states, such as New York, are even authorizing remote witnesses for wills, via video conference. Before you decide to do this, make sure that you understand the requirements in your state.
Other estate-planning documents that you may need during this time — trusts, powers of attorney, living wills, and temporary guardianship forms — also require proper execution. The witnessing and notarization requirements for these documents may vary by state.
How to get a document notarized during the coronavirus pandemic
It is the role of the notary public to prevent fraud when it comes to signing documents. Technically, you do not need to have a will notarized for it to be valid — but if you don’t, your executor and beneficiaries may be inconvenienced. If your will isn’t notarized, when you pass away the local court may require your witnesses to come to court to testify that they witnessed you sign the will and that you were competent. If your witnesses sign a notarized affidavit attached to the will to that effect, they don’t need to come to court.
Notarization requires visiting a notary public in person, which may not be possible at this time. You can wait to get your will notarized after the pandemic is over, or get your will notarized remotely if your state allows it.
Nearly half of states permit a notary public to perform their duties without being in the same room as the other person. This is called remote notarization. While there are often carveouts preventing remote notarization for estate-planning documents, several states have temporarily authorized the use of remote notarization for wills due to COVID-19 social distancing, and more and more states are considering this emergency measure.
Remote notarization regulations differ from state to state. If your state allows it, you will be able to participate in a video call with your notary using some other form of audiovisual technology, which is called remote online notarization. You will have to show a valid government ID, either clearly on the video or by uploading an image and sending it to the notary.
For estate planning documents that don’t need to be printed and signed by hand, the notary public will perform the notarization as they would in person — by confirming your identity and watching you sign the document electronically. Then the notary public will sign it electronically, affix an electronic notary stamp, and send it back to you.
Because wills and other estate planning documents generally require traditional signatures in most states, states that are temporarily allowing remote notarization generally are requiring notarizations to continue on paper. This means the notary public will watch you present identifying information and sign via the videoconference, then you’ll send the signed document to them to sign, stamp, and send back. The notary public may be required to make a recording of the videoconference and keep it for a number of years.
Commonly used online notarization services are DocVerify, Notarize, NotaryCam, and Safedocs.