Getting 'Ink on Paper': Executing Wills for Clients Who Are Away From Home During the Pandemic
This article presents ideas that are intended to help a practitioner complete an estate planning engagement by getting important documents duly executed.
September 10, 2021 at 02:30 PM
8 minute read
When Gov. Andrew Cuomo declared an end to the COVID-19 disaster emergency in New York state (Executive Order No. 210, effective June 25, 2021, rescinding Executive Orders No. 202 and No. 205), with much fanfare but very little notice, one group that took particular note was the estate planning bar, because the rescission of EO 202 meant an end to:
- Executive Order No. 202.7, March 7, 2020, which provided that notaries public could acknowledge signatures of and administer oaths to individuals who appeared (under particular circumstances) via "video conference;" and
- Executive Order No. 202.14, April 7, 2020, which provided that under similar circumstances, "the act of witnessing" contemplated by EPTL 3-2.1(a)(4) could be performed during a "video conference" (with requirements for the handling and transmission of such signature pages).
The declaration was greeted with joy by some and skepticism by others, but there was unity of sentiment—frustration—for estate planning practitioners with a calendar full of pending "remote" will executions. (Presumably, many clients who were looking forward to wrapping up the planning process from the comfort of their laptop were also a bit disgruntled by the delay of rescheduling and meeting in person.)
For reasons partly structural (such as legislative changes to the governor's emergency powers earlier in the year) and party circumstantial (the recent [change of governors]), it seems quite unlikely that anything like the "remote notary" and "remote witness" provisions of EO 202.7 and 202.14 will be declared by the governor or enacted by the legislature anytime soon.
Nevertheless, the pandemic surges on, and progress toward the "new normal" is fraught with major uncertainties, especially as it relates to employees returning to traditional workplaces and children returning to school. The diaspora of New Yorkers to vacation homes, rental homes, and the houses of parents/children/in-laws is far from over: many have returned to their primary residences, but many have not yet, and some will not ever.
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