What a difference a few weeks make! A month ago, the COVID-19 virus was a distant threat. Over the last few weeks, California courts and law offices have closed, leaving families at home and uncertainty as to when “normal” will return.
Colleagues share that COVID-19 has led to a flurry of calls from clients who want to push forward to complete estate plans that they had left unfinished. Folks who never had estate plans also are seeking to get them done.
California’s estate planning formalities, however, create challenges in our pandemic situation.
Face-to-face interaction between lawyers and clients is a cornerstone of the estate planning process. With office closures and “social distancing” requirements, meetings in a conference room can shift to video platforms and/or telephone connections. Draft documents can be sent via email or U.S. Mail.
The difficulties emerge when it comes to signing documents. Wills in California generally need to be signed by the testator (i.e., the person making the will) and two disinterested witnesses. Under California Probate Code section 6110, the witnesses must be present at the same time, must witness either the testator’s signing of the will or the testator’s acknowledgment of his/her signature on the will, and must understand that the instrument they sign is the testator’s will. Attestation clauses typically also recite the witnesses’ belief that the testator is of sound mind and that the will is not procured by duress, menace, fraud or undue influence.
Lawyers and their office staff routinely act as witnesses to wills, but may be unavailable to do so if their offices are closed. Disinterested witnesses may be unavailable in the testator’s household. Neighbors who ordinarily might help as witnesses may be reluctant to sit down at the kitchen table and witness wills as they are signed, but adjustments might be made (e.g., “bring your own pen” and “meet outside”) to keep some distance.
Testators might bypass the need for witnesses by preparing handwritten (holographic) wills as described in Probate Code section 6111. Alternatively, there is an exception to the dual witness requirement in Probate Code section 6110(c)(2) that applies where “clear and convincing evidence” shows that, at the time the testator signed the will, he or she intended it to constitute his or her last will.
In contrast with wills, trust instruments need not be witnessed in California. Typically, however, trust agreements and amendments are notarized and notarization helps authenticate the documents. Funding trusts with real property also entails the execution and recordation of notarized deeds to the trustee(s) of the trust.
Powers of attorney for financial management, under Probate Code sections 4121 and 4122, must be either notarized or signed by at least two witnesses other than the agent (attorney-in-fact) under the power of attorney. As detailed in Probate Code sections 4673, 4674 and 4675, advance health care directives have similar general requirements, with special rules on who can serve as witnesses and what they must declare.
While most law offices that conduct estate planning have in house notaries (often including the drafting attorney), the inability to meet with clients will make notarization a new hurdle. Mobile notaries may be reluctant to provide their usual services given that they could be transmitting the virus or receiving exposure to it.
As detailed in the California Secretary of State’s Notary Public Handbook, notaries generally must check the identification of signing parties and collect signatures (and sometimes thumbprints) in their notary journals. That’s difficult though not impossible to do while maintaining a distance of at least six feet.
While California notaries may not conduct remote online notarization, the Secretary of State, citing Civil Code section 1189(b), indicates that Californians may use “remote online notarization” by using a service provider in a state where such notarization is allowed.
Overall, the formalities required by California law make a lot of sense from the standpoint of protecting against fraud and undue influence, but do make it difficult for attorneys and staff members to complete planning projects in a pandemic situation when working from home. Clients who seek to pursue estate planning should consult with their attorneys about how to best proceed. It’s a different world for all of us.