New York Estate Planning & Elder Law Blog
The coronavirus pandemic has substantially altered the way that we engage in business. There are, however, ways to sign estate planning documents remotely without needing to be in close proximity to anyone.
To better prepare you for navigating the estate planning process remotely, this article reviews some important details that you should remember.
# 1 – Executive Order No. 202.7
New York has long been classified as a strict compliance state for estate planning documents like wills and powers of attorney. In response to the Covid-19 pandemic,
Governor Cuomo issued Executive Order No. 202.7 in the early days of the pandemic which permits remote notarization through videoconferences instead of requiring physical presence. The Executive Order requires the following conditions to be valid:
- The signer must be physically in New York
- The signer must present a photo identification
- The signer must transmit a legible copy of the document to the notary on the same day that the video conference occurs
- The video conference must be interactive
Shortly after this order became effective, Executive Order 202.14 followed which permits documents to be witnessed remotely on a live and interactive videoconference. This order requires similar conditions to be met. Skipping one or several of these steps creates a risk that the documents might later be found invalid.
# 2 – The Potential for Litigation
The newness of this legislation means that litigation questioning the validity of remotely signed documents is likely. To reduce the risk of future litigation, attorneys who supervise remote document signings should be alert to issues of capacity and preventing undue influence. These issues, however, are much more difficult to assess remotely than in face-to-face meetings.
Having remote video sessions can create challenges with capacity. For example, older individuals might experience confusion and demonstrate delayed responses to questions or even bizarre behavior in front of the camera that can give the illusion of capacity issues.
While attorneys in one-on-one meetings will often do things like clear out the room and have frank conversations to eliminate the possibility of undue influence, these tasks cannot be easily performed over video conference.
Additionally, in situations where someone is being disinherited or receiving less than their share, parties are more likely to raise an argument of unfairness.
To avoid these claims, it’s likely a good idea to re-execute estate planning documents at a later time.
# 3 – The Benefits of Remote Meetings
Remote meetings are not without their advantage. For one, attorneys can dramatically increase their geographic reach. Additionally, for parties who live in disparate areas, remote meetings can allow meetings while avoiding travel costs. Furthermore, for senior citizens and others who are at risk of experiencing bad and life-threatening cases of Covid-19, remote meetings allow a safe alternative.
Speak with an Experienced Estate Planning Attorney
The estate planning process is full of challenges and one of the most recent ones involves how to safely create an estate plan during the pandemic. If you or a loved one needs the assistance of an experienced estate planning attorney, do not hesitate to contact Ettinger Law Firm today to schedule a free case evaluation.