Document Signing During the COVID-19 Pandemic

Estate planning “best practices” for signing documents are being redefined during the current pandemic.

California Probate Code dictates the execution of a last will and testament requires the signer and two witnesses to be in the presence of one another throughout the execution of such a document. All must see each other add their signature before the will is considered validly signed.

But under “shelter-in-place” orders, how can this be safely and lawfully accomplished?

In California, it can’t unless the signer (“testator”) happens to live in a collective living situation including two witnesses who are not recipients (“beneficiaries”) under the proposed will, nor named as the executor (the person who will be responsible for implementing the will’s provisions under supervision of a Probate Court). If that is not the case, two persons and the testator must consider the sacrifice of facing increased risk of exposure by coming into contact with unrelated persons who may be carrying the virus. They also face prosecution for violation of isolation edicts.

Fortunately, there is a statute that allows an individual to adopt a will if it is entirely written in the signer’s own hand (a “holographic” will). No pre-printed writing can be on the page. The document may copy the words of a typed document prepared by another, such as an attorney. It is not witnessed. It must declare the signer’s intent that it be a last will and testament. It must be dated, and signed by the testator.

What about adoption of a “living” trust?

Although most trust documents contain provisions for acknowledgement by a notary public, notary acknowledgment is not required by California statutes in order to adopt a trust. (Many institutions, such as banks and title companies, prefer to find the comfort of a notary acknowledgement attached to a trust agreement, but it is not required that they be satisfied, particularly at this time.)

There are several options available to the person who has a document that calls for the acknowledgement by a notary.

First, the document should be signed, regardless of notarization. Why? Because it may be notarized later. The notary may acknowledge a signature that is applied in the notary’s presence or that has already been signed elsewhere so long as the signer appears before the notary and attests to the signature being theirs. In the interim, the document becomes valid upon the signature of the person creating the trust (variously called the “Trustor” or “Settlor”). Upon its adoption, the trust may receive assets transferred to it which then may avoid statutory probate procedures commonly considered odious because of public access to private information and cost.

Second, the signer may attempt to locate a notary who is prepared to accept the risk of exposure by controlling the signing conditions (at the signer’s home or in the notary’s office, within view but 6-feet separate, masks, gloves, hand sanitizers, bring your own pen, doors open in advance, the only point of physical contact being the right thumb onto an ink pad and then onto the notary’s record book).

Some commercial establishments (banks, UPS stores) remain open as essential services with notarial services available. Best to check before leaving home.

And as for adopting an Advance Health Care Directive (“AHCD”) or a Durable General Power of Attorney (“DPOA”), The AHCD allows for either notarization or two witnesses. The rules for these choices described above apply. The DPOA calls for notarization. Again, the choices described above for accomplishing this procedure apply.

The most significant “best practice” hasn’t changed: have an estate plan in place now. The consequence of deliberation may be the imposition of State laws in probate describing pre-ordained dispositions unsympathetic to the non-signer’s desires. A “living” trust allows improvements to be made later, but there must be a starting point.

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