Witnessing and Notarizing Your Documents During COVID-19

Many Americans are thinking about creating or updating their estate plans during the recent Coronavirus outbreak. FreeWill’s self-help tools make it easy to create your own Last Will and Testament, Advance Healthcare Directives, and Financial power of Attorney from your home.

Getting these documents witnessed or notarized in this time of social distancing, however, may present novel challenges. Below are some tips by document:

 

Wills

"What is the signing requirement to make it legal?"

Wills generally must be signed by the will-maker in the physical presence of two witnesses to be valid. Witnesses should not be beneficiaries of the will or direct relatives of the will-maker.

Note: The only state in which notarization is required to create a legal will is Louisiana. However, it can be used in all states to make the will “self-proving”, and thus reducing the risk that your witnesses are called to testify in probate court that your will was indeed authentic and reflects your intent.

Tips:

For those who are sheltering in place with people who are not beneficiaries, ask your roommates to be your witnesses.

For those who don’t have this option, you can turn to healthy neighbors as an option. Carefully conduct an in-person witnessing while observing appropriate distancing and sanitizing measures. An example of this could be: calling your neighbors to see if they would be willing, gathering in an open space where you can maintain social distance, signing the document with witnesses in sight, leaving the document and one-time use gloves for your neighbor. Then walk away from the document, and let your witnesses sign! Once they are done, they can dispose of their gloves and leave the document for you to pick up.

Finally, you can wait until the end of the current restrictions for witnesses to sign. Individuals who decide to wait until social distancing measures have ended may still benefit from creating their will and signing it without any witnesses. Although the document will not be legally valid and enforceable, it will still reflect your wishes and might be taken into account by the probate court as “evidence of intent.”

 

Advance Healthcare Directives

"What is the signing requirement to make it legal?"

The signing requirements on advance healthcare directives vary widely by state. 

Tips:

For most states where only witnesses (and no notary) are required, the same tips apply as for wills.

Even if you cannot completely finalize your document, however, it may nevertheless be useful to prepare an Advance Healthcare Directive – if you should become incapacitated, having a document that describes the medical care you want (or do not want) may help your loved ones make necessary decisions.

 

Financial Powers of Attorney

"What is the signing requirement to make it legal?"

All financial powers of attorney must be notarized before they are valid, and some states also require them to be witnessed.

However, if you live in a state that does not require Financial Powers of Attorney to be witnessed, you may be able to have your document “remotely notarized” online. There are currently 22 states that permit remote online notarization (”RON”) — Arizona, Florida, Idaho, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and Washington. 

 

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Or call Tom Aakhus at 614-441-7998 with any questions.