Estate Planning in a Pandemic: Remote Document Signings are the Now and Hopefully the Future

A global pandemic will certainly induce one to consider his or her own mortality and, as such, initiate a revisit or beginning of their estate plan.  But paradoxically, the pandemic has also made it more difficult for us to venture out to ensure these matters are in order.  Many nursing homes across the state of North Carolina are on lock down due to the pandemic, making it more difficult to discuss any loose ends of an estate plan with a distressed loved one residing in a care facility. 

Despite the increased difficulty during the pandemic, with the emergence of Zoom as a mainstream communication medium and with adherence to the CDC recommendations, it is now more important than ever to speak with your family, attorney, financial planner and health care providers about the status of your estate plan. 

Traditionally, many estate planning documents required the testator/principal, two witnesses and a notary public to be physically present at the same location and at the same time the documents were signed.  The idea has always been that any remoteness of the parties to a document execution would breach the integrity of the process and would be prone to fraud.  While this idea has merit, in the legal community, we understand that legislative action sometimes follows decades behind advances in technology.  With the current advancement of remote video conferencing interfaces, physical presence should no longer be required to maintain the integrity of executing estate planning documents. 

Sure enough, with the pandemic as the impetus, in May of 2020, the North Carolina General Assembly initiated authorization for remote notarizations and witnessing in Senate Bill 704.  The Legislature has currently extended this Order until March of 2021.   

The emergency statute, which has been codified in NCGS 10B-25 (b) as it pertains to notarial duties, requires that the technology used for remote notarizations meet several requirements.  Among other things, the video conferencing technology has to allow for real-time communication and the notarial act must occur in real time.  The technology must also have clear audio and visual capabilities and be capable of recording, although an actual recording of the document signing ceremony is not required.  And yes, Zoom meets all the statutory requirements! 

The emergency statute actually waives the statutory witnessing requirement for health care powers of attorneys and living wills temporarily, which makes sense during a global health crisis. 

To ensure the integrity of the document signing process, the statute requires very specific witness and notary attestations, same day electronic submittal of signed documents to the notary public, and mailings of the originals to the notary public for comparison with the electronic submissions. 

While all this may seem daunting for practitioners, there is no better time for clients to update or start their estate planning and take advantage of the convenient allowances of this emergency legislation without risking exposure to Covid-19. 

The smooth implementation of document signings under this emergency order without litigation or controversy will hopefully convince the North Carolina Legislature that it is high time to make these changes permanent. 

To speak with one of our estate planning attorneys about remote document signings please call our office. 

Estate Planning & Admin