Stephen Asbel, with Reger Rizzo Darnall.

I have practiced trust and estate law for over 30 years and like any estate planning attorney in Pennsylvania, I have a long-established routine for clients signing wills. The client signs the will in the presence of two adult, disinterested witnesses and a notary. The witnesses then sign the will as subscribing witnesses to facilitate future probate under 20 Pa.C.S. Section 3132. The testator and the witnesses also sign an acknowledgment and affidavit to make the will self-proving under 20 Pa.C.S. Section 3132.1 so that when the time comes to probate the will, there will be no need to produce witnesses at the Register of Wills. In most cases, signings occur in the office. For clients who are unable to travel, I occasionally will bring along a notary from the office and conduct the will signing in the client's home. Alternatively, an attorney may attend the signing without a notary present and then the attorney makes an affidavit before a notary. It is a time-tested, simple, reliable procedure.

Then the COVID-19 pandemic exploded and as part of the public health emergency, our offices have closed, and we and our clients are being ordered to stay in our homes except for going out for life-sustaining reasons. Thanks to modern technologies, we can communicate with clients, draft documents, access our office servers and send documents to clients by email or other electronic means. However, it is now difficult to impossible to follow the usual process of wills being signed, witnessed and notarized. Under the current Pennsylvania law, notarization requires that the person signing a document be physically present before the notary with an exception for an attorney being present to witness the signing who then makes an affidavit before a notary. There have been articles published about passing documents back and forth through a window at clients' homes or in parking lots with the notary in the car but even that system can transmit the virus via the paper of the documents since the virus can survive on surfaces for some time. Even such limited exposure is risky, particularly for clients who are elderly or have prior health problems or who have such persons living in their homes.

Following an email discussion with colleagues in our firm's estate and trust group, I sent an email to state Rep. Tim Briggs, who represents my State House district, on this matter and he responded to me in short order to indicate that a bill was pending to authorize notarization when the signer of the document appears via a video conference technology.

HB1564 passed in the House of Representatives 198-0 on March 25. The bill is now pending in the Senate Local Government Committee. The bill would add a new Section 314.1 to Title 57 to provide that a remotely located individual can comply with the Section 306 requirement for personal appearance before the notary public by appearing via two-way audio-visual technology.  The notary public would be authorized to perform the notarial act if three conditions are met:

• The notary public has: personal knowledge as to the identity of the individual as per S ection 307(a); or, has satisfactory evidence of the identify of the remotely located individual by oath or affirmation from a credible witness appearing before the notary by oath or affirmation from a credible witness appearing before the notary public under Section 307(b) or this new Section 314.1; or is able to reasonably identify the individual by at least two different types of proofing processes or services;
• The notary public is able to reasonably identify and record before the notary public as the same record in which the remotely located individual made the statement; or on which the remotely located individual executed the signature; and
• The notary public, or a person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act. (If the push-button recording function that is part of a video conference such as Zoom is acceptable, then this should not be a difficult requirement to follow. If a more complex process requiring additional equipment will be required, then such legislation will be of less benefit.)

(There are additional requirements in the bill for when the remotely located individual is located outside the United States that will not be discussed here.) The bill also provides criteria for the Department of State to issue regulations with regard to identity proofing processes and technologies.

The usual form of certificate signed by the notary public must contain additional language to indicate that the notarial act was performed by means of communication technology.

While the new legislation is still pending, on April 2, the Pennsylvania Department of State announced that it had requested and received a temporary suspension of the existing statutory requirement that persons signing documents to be notarized be in the physical presence of the notary. The temporary suspension of the notice requirement includes several documents that are used in estate planning. The covered types of documents are as follows:

• Documents that require notarization
• Powers of attorney (20 Pa.C.S. Section 5601)
• Self-executing wills (20 Pa.C.S. Section 3132.1)
• Temporary guardianship (23 Pa.C.S. Section 5621)
• Documents that do not require notarization, but notarization is best practice.
• Advance health care directives/health care powers of attorney (20 Pa.C.S. Section 5452)
• Living wills (20 Pa.C.S. Section 5442)
• Standby and temporary guardianship (23 Pa.C.S. Section 5611)

Under this temporary suspension, notaries may use audio-visual communication technology instead of physical presence. Notaries must execute notarial acts following all other requirements of the Revised Uniform Law on Notarial Acts (RULONA). The safeguards included in the Uniform Law Commission amendments to RULONA and the Remote Online Notarization legislation, which is pending in the legislature, and discussed above, will be required. The Department of State is therefore directing that all notaries who will be using audio-visual communication technology in place of physical appearance must:

• Become an approved Pennsylvania electronic notary. An application is available at this site—https://www.notaries.pa.gov/Pages/NotaryChangeApplication.aspx?AppType=3
• Use an e-notary solution approved by the Department of State that offers remote notarization technology. These solutions include: Doc-Verify, Safe-Docs and Pavaso.
• Indicate in the notary certificate that the notarial act was performed using communication technology such as: "This notarial act involved the use of communication technology."

HB1564, if enacted, and the above-referenced notice from the Department of State will enable a will to be notarized if the testator and the witnesses are not at the same location as the notary. The bill and the Department of State notice do not, however, address the question of subscribing witnesses witnessing the testator signing the will from a different location than the testator via the same video conference. Under the current circumstances of the COVID-19 pandemic, the same considerations that make it unsafe for the testator and witnesses to appear in person before the notary public also make it unsafe for witnesses to come to the same location as the testator. I asked Briggs, who has been responsive in replying to emails from me, if a bill to amend Title 20 to address that the witnessing issue was pending. Briggs indicated to me that if this subject is being addressed, it would be in a different committee but as of my last communication with him, he did not have that information. The Department of State notice refers specifically to documents which require witnesses and notarization, so it is likely that witnesses being at a different location is contemplated even if not explicitly stated. However, wills are filed for probate in a Register of Wills office, not the Department of State.

So where are we under existing law regarding witnesses? There is no requirement of subscribing witnesses signing a will at the time the testator signs it at all (leaving aside the situation where the will is signed by mark or by another person on the testator's behalf). A will must be in writing, must be testamentary in character and must be signed by the testator. If there are no subscribing witnesses, then nonsubscribing witnesses—individuals who personally knew the testator and can state under oath that they recognize the signature of the testator, can appear before the Register of Wills to prove the testator's signature.

Neither Section 3132 nor Section 3132.1 address whether the witness must be physically in the same room rather than watching via a video conference nor have I found any Pennsylvania court cases addressing the question.

So how do we proceed during this unprecedented challenge in will signings? Ideally, there will soon be new legislation that will explicitly authorize both appearing before a notary public via video conference from a remote location and that subscribing witnesses may witness the signing via the same video conference.

If acting under the Department of State notice, or if HB1564 is enacted but nothing is done regarding witnesses, it is arguable that there is no prohibition on witnessing via video conference because there is no explicit statutory definition of how a will is to be witnessed as compared to the law on notarization which currently explicitly requires physical presence. The entire will signing process could proceed via audio-video conference following the procedure for remote notarization of the signatures of the testator and witnesses. Prudence suggests having the will signed again when the current emergency ends with witnesses in person to avoid any doubt of the validity of that process. At the same time, in case the testator either dies without signing the will again, it would be prudent to retain the names and contact information of the witnesses who watched the signing on video, and perhaps other non-subscribing witnesses as well so that the will can still be filed for probate even if the Register of Wills does not accept the remote witnessing.

Finally, if it is necessary for a will to be signed in a situation where the testator lacks the required audio-visual technology or other circumstance that makes remote notarization impossible, to avoid the risk of infection from physical proximity and handling of paper documents, the attorney can electronically send the will to the client to print out and sign at home. The client should provide to the attorney the names and contact information of disinterested adults who are sufficiently familiar with the testator and the testator's signature who could serve as non-subscribing witnesses if necessary. If possible, when the current emergency is over, testator can sign the will again in person in the usual manner with witnesses and notary present.

The manner of signing a durable power of attorney may present a greater challenge. Unlike wills, durable powers of attorney must be both witnessed by two individuals over 18 AND acknowledged before a notary public under 20 Pa.C.S. Section 5601(b). A no-contact execution of the power of attorney will thus require a remote notarization law or acting under the current Department of State temporary measure but only if the maker of the power of attorney and witnesses have access to audio-visual technology. Remote witnessing may be possible, without new legislation, in the same video conference for the reasons discussed above though it would be preferable for there to be explicit statutory authorization on the subject. If it should happen that there is not legislative explicitly authorizing remote witnessing, and it is necessary to sign a power of attorney, then the best option would appear to be to follow the remote notarization process as to the maker of the power of attorney and witnesses. Then, when the emergency has passed, if possible, have the power of attorney signed again with the witnesses at the same location as the maker of the power of attorney.

Stephen M. Asbel, partner in Reger Rizzo & Darnall's Philadelphia office, focuses his practice in the areas of estates & trusts, corporate, and real estate law.