As I wrote on April 4, 2020, the Covid-19 pandemic has provided a loud wake up call for New Yorkers who’ve put off estate planning. It’s hard to argue that many of us are now more motivated than ever to write that Will, execute that Health Care Proxy, and make a Power of Attorney.
But how? After all, New York is on PAUSE.
The answer: Virtual, remote Will execution under the supervision of an experienced estate planning attorney.
On April 4th, I wrote that it still wasn’t clear whether estate planning documents in New York could be executed remotely over video conferencing software, like Zoom or FaceTime. But that has changed.
Today, New York’s governor issued Executive Order Number 202.14, which authorizes New Yorkers to execute their estate planning documents using audio-visual software, so long as the requirements of the Executive Order are met. The relevant provision of the executive order follows:
For the purposes of Estates Powers and Trusts Law (EPTL) 3-2.1(a)(2), EPTL 3-2.1(a)(4), Public Health Law 2981(2)(a), Public Health Law 4201(3), Article 9 of the Real Property Law, General Obligations Law 5-1514(9)(b), and EPTL 7-1.17, the act of witnessing that is required under the aforementioned New York State laws is authorized to be performed utilizing audio-video technology provided that the following conditions are met:
- The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
- The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
- The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
- The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
- The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.