These are difficult and uncertain times. Coping with the Corona Virus and COVID-19 can be stressful and down right scary. With the focus now on the health of you and your family, estate planning may be the last thing on your mind. Even if you are wishing to create an estate plan, social distancing and stay at home orders may make it hard for you to meet with an attorney or sign your Will or other estate planning documents. Fortunately, if you live in Arkansas, Governor Hutchinson just signed an Executive Order making it easier for Arkansans to complete estate planning documents from the comfort and safety of their own homes.
As is more fully explained below, ordinarily your Last Will and Testament must be signed in the presence of two witnesses, who must also sign the document swearing that they witnessed your signature. Also, other estate planning documents, such as trusts, powers of attorney, living wills and advance directives, need to be signed in the presence of a notary public. The Governor’s Executive Order 20-03 allows witnesses to Wills and notaries to remotely witness signatures through video conferencing. The Governor’s order will remain in effect as long as the COVID-19 emergency continues.
Executive Order 20-03 requires that both the signor and the witnesses and/or notary be physically present in Arkansas when the documents are signed. The executive order also requires that the video conference have both video and audio capabilities. Further, the executive order requires that a notary validate the identity of the person signing the document. If the person signing the document is not already known to the notary, then they will have to show the notary a driver’s license or other valid form of identification by placing the I.D. in front of the video camera so that it can be remotely seen by the notary.
Executive Order 20-03 also allows documents to be signed in counterparts. Signing in counterparts means that the document can be signed and then an exact copy of the document can be signed by the witness or notary in a separate location and the copy can be later attached to the original. The executive order specifically states that it includes deeds, Last Wills and Testaments, durable powers of attorney, and health care proxies. Be aware, even with the new rule, if the document states that it cannot be signed in counterparts, then it cannot be.
The executive order does not apply to all notaries. Only notaries who are or work for attorneys, title agents, or financial institutions can use the new video conference rules. Other notaries will still have to witness someone’s signature in person.
Arkansas law sets out that to be valid, a Will must be signed by the creator. If the creator is too weak to sign, the Will can be signed by someone else in the creator’s presence, with the creator’s permission. Unless the Will is Holographic (i.e. a handwritten Will), the signature of the creator must be witnessed by two disinterested persons. The witnesses must be at least eighteen years old and of sound mind. They must be disinterested, meaning that they do not benefit from the Will. Finally, the creator must state in the presence of the witnesses that this is his or her Will.
The Will does not have to be notarized. However, the Will can have something known as a Proof of Will attached to it. A Proof of Will is a notarized statement by the witnesses that they were present when the Will was signed and that they witnessed the creator sign the Will and that the creator appeared of sound mind and legal age at the time of signing. See Ark. Code Ann. § 28-25-106.
With the new Executive Order 20-03 both the witnesses to the Will and the Notary Public can be “present” as long as they can see and hear the creator over the internet, which can be accomplished through an app such as Zoom, Skype or Facetime.
The purpose of an estate plan is to make your wishes known and make sure your property goes to who you want it to after you die. A well drafted estate plan can also avoid the need for probate administration, which can be a costly and time consuming process. An estate plan may include documents such as a Last Wil and Testament, a Trust, a Power of Attorney, a Healthcare Directive, and a Living Will. Your estate plan may also include deeding or titling your property in such a way that your family and loved ones receive it upon your death without the need for probate.
Even if you aren’t worried right now about what happens to your property when you die, you should consider what would happen with your finances and your healthcare decisions if you become too sick to managing your own affairs. Property placed in a trust can be managed by someone else if you become incapacitated. Also, if you have a durable power of attorney, your agent in that document can manage your property per the wishes you set out in the power of attorney if you are unable to do so. If you are unconscious or incapacitated and unable to make healthcare decisions for yourself a healthcare proxy or advance care plan can give someone else authority to make healthcare decisions for you. A living will lets your healthcare proxy and your doctors know how you want to be treated and cared for if you can no longer convey your wishes because you are unconscious or incapacitated. If you do not have a trust, power of attorney and/or healthcare directives in place, and you become incapacitated, then your loved ones may have to petition a court to obtain guardianship over you before they can help with your finances or healthcare decisions.
If you are thinking of creating an estate plan or if you need to modify your current estate plan, our office can help. We can schedule phone or video conference meetings with our experienced attorneys and can provide your important estate planning documents to you via the internet. We can also set up the required video conferencing needed to ensure your documents are properly witnessed and notarized so that they are effective when needed.
Remember in these trying times we are all in this together. Please stay safe. Thank you for trusting us with your estate planning and other legal needs. We are open during this crisis and here to help you get through it.