During this time of Pandemic uncertainty, a number of existing and prospective clients have reached out to us regarding having their wills and estate plans updated. We are here to assure you that, although working largely remotely, we are ready and able to assist you with your estate planning needs. Our attorneys are conducting meetings via video (Zoom) and telephone conferencing and continue to draft documents for client review, with the only significant change to our practice being how the finalized documents are formally executed.
As many of you know and have experienced, the execution of a will is usually a formal ceremony, with the necessary signatures being observed by two witnesses and a notary public. During this crisis, we are sending final will and ancillary documents, with detailed execution instructions, to our clients so that they may be executed at home (as explained below). We are available to supervise the signing via Zoom or telephone conference, as was just approved by Governor Murphy’s Executive Order 103 on April 14, 2020. As long as the procedures set forth in a new statute enacted by the state legislature and signed by the Governor just this week are strictly followed, these wills will be valid in all respects. And, once this crisis is over, any client may choose to re-sign or even amend his or her estate planning documents in our offices in the traditional format, where we can serve as witnesses and act as the notary. In such a case, there will be no additional charge for the re-signing.
Even under the newly-enacted emergency procedures, signing estate planning documents at home will present challenges. Although the best practice is to have your will executed before the notary and two witnesses who are not beneficiaries, it may be difficult to find disinterested witnesses and a notary who are willing to observe, even at a socially acceptable distance, the formal will execution . The following explains how a will and ancillary documents can otherwise be legally executed in New Jersey during this crisis.
• If you are not able to find bank staff, neighbors or friends who can serve as disinterested witnesses, beneficiaries may serve as witnesses to a will signing. In New Jersey, a will must be signed before two witnesses (even if named as beneficiaries). This means that your spouse and adult child (over 18) may serve as your witnesses. If the witnesses cannot be present at the same time, the testator may still sign his or her will, so long as the witnesses sign within a reasonable time, and the testator acknowledges his or her signature on the will to the witnesses, whether singly or jointly. To maintain social distancing, the signing may take place outdoors (i.e. we have had clients set up appointments with their local bank and then traveled to the bank’s parking lot and signed documents on the hood of their car with personnel viewing the signature and then witnessing/notarizing the testator’s signature) or the parties may be in different rooms of your home. At all times, we recommend that all parties use their own pens.
• If you are not able to find a notary, you may still sign your will with the two witnesses, but we caution you that your will won’t be “self-proving” in this instance. This means that if the testator dies before the will is re-executed in our offices, one of the witnesses must sign an affidavit before the Surrogate as to the document’s authenticity in order for the will to be probated. The risks of not having a self-proving will further include the potential that one or both of the witnesses may predecease, or may not be able to be located, at the time of the Testator’s death. As a result, if the will is not notarized, it is imperative for the Testator to come into the office to re-sign the documents as soon as possible after the restrictions have been lifted.
• The living will/health care proxy is another estate planning document that can be signed by two witnesses without a notary, and which is normally signed when a new will or a codicil to an existing will is signed.
• In New Jersey, a power of attorney must be notarized in order to be valid.
If you are a New York State resident, New York estate planning documents may also be executed by remote video witnessing and notarization.
Please feel free to contact Richard Fricke
rf*****@pr********.com
or phone at 201-391-3737 if you would like to further discuss your estate planning.
Stay safe. We will all get through this together.
