Those who are fortunate can continue to work virtually during the coronavirus shutdown. Lawyers are largely in that group. We can continue to communicate, draft documents, file papers in court or at the registry of deeds, and even hold some court hearings telephonically. Of course, a conference call or even a videoconference does not have the immediacy of an in-person meeting, but it’s possible to keep moving forward.
One challenge for estate planning attorneys is how to assist clients with executing their documents, which we had almost always done in person in the past. Here are a few solutions or “work arounds” we’ve come up with so far:
1. The Drive Through
Attorney Patricia D’Agostino reported on how this works:
We just did our first successful “drive through” document execution in the Wellesley office parking lot. The client is an infectious disease doctor and anxious to get things in place for his wife (also a doctor) and their minor children. I served the notary from my car, Dorina and her husband, Tom, were witnessing from their car and the client was in his car in the middle. We were all on our conference line to communicate. The client showed me his driver’s license through the car window. We had already sent the original documents to the client by Federal Express and I had copies.
After the client signed the documents, he placed them outside of his car and when he was back in his car, I got out and put them in my backseat. I’ll leave them there for a few days to be safe before we process them. Since our understanding is that the coronavirus dies out on all surfaces within three days, Dorina and Tom will be able to witness the documents and I will be able to notarize them at a later date.
A special thank you to Dorina and Tom for coming out and being flexible and to our staff working from home for Federal Expressing the final docs to the client. Great team work!
Another lawyer in our office has performed a variation on the drive through by driving to our clients’ house, staying in her car and observing the clients signing their documents on their porch.
2. Bare Bones Execution, For Now
While we typically notarize and witness all estate planning documents, it turns out that notarization is not required for most of them and witnesses are only required for some. While the will, for instance, requires two disinterested witnesses, the purpose of the notarization is simply to prevent the need for the witnesses to go to the probate to attest to the will’s authenticity when the testator passes away. The will is still valid without being notarized.
A health care proxy also requires witnesses and not notarization. Durable powers of attorney and trusts do not have to have either witnesses or notarizations unless they are going to be filed with the registry of deeds. We typically include all the formalities both in case the documents may need to be recorded and simply for the sake of appearance, to make them look for formal and authentic. That can go a long way towards their being accepted by third parties.
But in this time of the coronavirus, documents without all the bells and whistles are better than no documents at all. We can send clients their estate planning documents eliminating the notarization form and witnesses where they are not needed along with instructions for their execution. In addition, we can be present during the document execution by videoconference. The only difficult part may be finding disinterested witnesses. We have to rely on clients for rounding them up, making sure they follow all the social distancing rules.
If clients do go ahead with document-execution-light, it is with the understanding that when the shutdown ends, they will come into our office to re-sign everything with notaries (at no additional charge).
3. Virtual Notarization (with Retroactive Effect)
A variation on document-execution-light is for the signing to take place by video conference with the attorney notarizing the documents after the client sends them back to us. Under current law, the notary and witnesses must be in the physical presence of the person signing to notarize the document. But there is a bill in the legislature to permit notarization and witnessing when the notary and witnesses have observed the signing by video and for the law to have retroactive effect for such notarizations since the beginning of the shutdown.
This is an improvement over the document execution without notarization since if the bill becomes law, the clients will not have to come back into our office to re-execute their documents. They would only have to take that further step if the bill does not pass, which is doubtful.
[Editor’s note: The latest news is that the House version of the bill does not include retroactive effect. If it passes, clients will still have to re-sign their documents, but could do so by video conference relatively soon. Another option would be to wait, perhaps as little time as a week, to execute the documents so that they can be notarized by video conference without relying on retroactivity.]
With everyone’s cooperation, versatility, good cheer and enterprise, we will get through this pandemic. One silver lining is that it might get the legislature to update some of its rules for the 21st century.