13 April 2020

Signing an Estate Plan from home During COVID-19: Governor Whitmer Executive Order Allows for Remote Witnessing and Notarization

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

COVID-19 has created an atmosphere of uncertainty, fear, and loss of control. People are examining what really matters in their lives, and may be thinking deeply about their safety, health, and even mortality.  Maybe now more than ever, people want to make plans to ensure protection for themselves and their loved ones.  This protection can be gained through properly executed estate plan documents, such as Durable Powers of Attorney for Finance, Designations of Patient Advocates, Wills, and Trusts.

Unfortunately, estate plan signings at your attorney’s office are not social distancing friendly, and in most instances, have become difficult or impossible to complete during the pandemic.  A typical estate plan signing involves several people, crowded around a table, talking, sharing pens, and passing legal documents around for review and signature.  Those most at risk in a high-touch situation are the same people who are now in critical need of completed estate plans.  These include the elderly, the immune-compromised, those scheduled for surgery, and our frontline healthcare professionals and other essential workers.  Since the pandemic began, estate planning attorneys have been searching for any legal means to help clients exercise their legal rights and get critical estate plan documents signed.

Over the past few weeks, the State Bar of Michigan, along with the Probate and Estate Planning and Elder Law Sections of the State Bar of Michigan have been actively involved in addressing the remote notarization and witnessing dilemma.  The Governor’s office took notice and got involved to assist.  Late in the day on April 8, 2020, Governor Whitmer signed Executive Order 2020-41: Encouraging the use of electronic signatures and remote notarization, witnessing, and visiting during the COVID-19 pandemic (EO 41).  Importantly, EO 41 authorizes remote notarization and witnessing of legal documents and is valid through May 6, 2020, unless further extended.  Under EO 41, common estate plan documents, such as Wills, Trusts, Power of Attorney, Health Care Directives, and Deeds, can be properly signed remotely.

While helpful, EO 41 outlines numerous strict requirements for remote signings to be valid.  Some of these requirements can seem overwhelming, even for the most technology savvy.  The Miller Johnson Private Client Team has assembled an internal practice checklist to be used for remote signing meetings so that applicable estate plan documents can be executed properly and the meeting can be conducted efficiently.

Importantly, clients need the following in order to participate in a virtual signing.

  1. Access to a smartphone, computer, laptop, or tablet device with video capability;
  2. Access to two way real-time audiovisual technology that allows for the meeting to be recorded (FaceTime, Zoom, Skype, etc.)
  3. To be physically located in Michigan during the virtual signing (other types of legal documents may be notarized virtually when you are outside of Michigan under certain conditions);
  4. To be known to the notary or able to provide picture identification;
  5. To be able to physically sign the document on multiple pages where instructed;
  6. The ability to mail, fax, or email the signed document to the notary on the day signed.

What does all of this mean for you? Estate planning (and other legal processes too) can continue during the shelter-in-place order.  It means that you are back in control of making important decisions that affect your family, health, well-being, and financial security.  It means we can go forward beginning or completing your estate plan and related legal documents while keeping all involved safe and healthy.

Please contact your Miller Johnson attorney if you have any questions about EO 41, this article, or your estate plan.