In the past few weeks, Governor Hogan has passed two Emergency Executive Orders which facilitate the execution of estate planning documents, while keeping a safe six feet’s distance from all other persons. The Orders provide that it is “…necessary and reasonable to allow persons to use technology…” to remotely witness, notarize, and sign certain documents to “…reduce the threat to human life caused by COVID-19 in Maryland, protect the health and safety of Maryland residents and save lives…”
The purpose of this article is to synthesize those Orders to (i) educate attorneys on ways to further help their clients, and (ii) help put clients’ minds at ease, knowing that they may still fully document their wishes, giving them some control in this uncertain time.
What are the legal requirements for the witnessing and notarization of estate planning documents in Maryland?
Preliminarily, it is important to understand the general requirements for the proper execution of estate planning documents in Maryland. The following are the requirements under Maryland law, which remain in effect, but which have been amended by the below-described Governor’s Orders.
- A properly executed Last Will and Testament in Maryland requires two witnesses.
- Financial Powers of Attorney. The Maryland Statutory Durable Personal Financial Power of Attorney requires two witnesses and notarization (the Notary may serve as one of the witnesses).
- Advance Directive for Health Care. An Advance Directive requires two witnesses (the agents may not serve as witnesses, and at least one of the witnesses must be someone who would not benefit financially from the demise of the principal).
- Trust Agreement. To properly execute any type of Trust Agreement which is intended to hold real estate, two witnesses and a Notary Public are required.
How to stay safe and healthy while meeting the above requirements:
- Remote Witnessing and Electronic Signatures (Governor’s Emergency Order No. 20-04-10-01).
An “Electronic Signature” is defined in the Order as “…a visible electronic mark attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.”
This Order defines “Remote Witnessing” as witnessing the execution of a document by a person who is in the “Electronic Presence” of the witness, but not in the physical presence of the witness.
This Order defines “Electronic Presence” as the “relationship of two or more individuals in different physical locations who can observe one another and communicate to the same extent as if the individuals were physically present in the same location.”
This Order applies to Wills, Powers of Attorney, and Advance Directives, suspending the requirements of a physically present witness or witnesses, provided that the following conditions are met:
- The signer and the witness must be able to observe one another and communicate to the same extent as if the individuals were physically present at the same location (witness must be in the “Electronic Presence” of the signer).
- The signer must either be (i) a resident or domiciliary of the State of Maryland, or (ii) physically located in the State of Maryland, at the time of signing.
- The witness must be a resident of the State of Maryland.
- The witness must be physically located in the United States at the time of the execution of the document.
- The witnesses, the signer, and a “Supervising Attorney” (an individual who is admitted to practice law in Maryland and who is currently in good standing) must all be in the physical presence or Electronic Presence of one another.
- The Supervising Attorney may not serve as a witness in order to satisfy a legal requirement for the execution of the document.
- Signer and witnesses must physically sign or Electronically Sign (as defined above) one or more counterparts of the same document.
Supervising Attorney must create a certified copy of the document, which shall be deemed to be the original of the document, which certifies that the document was remotely witnessed in reliance on the “Order of the Governor of the State of Maryland Number 20-04-10-01, dated April 10, 2020, Authorizing Remote Witnessing and Electronic Signing of Certain Documents” and that the Supervising Attorney took reasonable steps to verify:
- that the copy of the document is a true, complete, and accurate copy of the document signed by the signer;
- that the signatures contained in the copy are either the original signatures or electronic signatures of the signer and each of the witnesses;
- the identity of the signer, and that the signer was a resident or domiciliary, or was physically located in, the State of Maryland at the time the signer signed the document; and
- the identity of each of the witnesses, and that each witness was a resident of the State of Maryland at the time each witness was signing the document.
Please note that Governor’s Emergency Order No. 20-04-10-01 is temporary and may be amended or rescinded at any time.
- Remote Notarization (Governor’s Emergency Order No. 20-03-30-04).
For a document to be properly notarized using “Remote Notarization,” the following requirements must be met for each notarial act conducted remotely:
- The notary must be current notary in good standing.
- The notary must notify the Office of the Secretary of State of the intent to use remote notarizations before performing any remote notarial acts (see below).
- The notary must identify the communications Technology Vendor he or she will use and confirm that the Technology Vendor allows, in real time, (1) the viewing of the remotely located individual and (2) the comparison for consistency of the information and photos presented as identification credentials.
- The notary must create and retain an audio-visual recording of the performance of the notarial act.
- The notary must note on the notarial certification and in his or her notary log that the individual was not in the physical presence of the notary public and that the notarial act was performed for a remotely located individual using communications technology.
- Upon completing the notarization, the notary must immediately transmit the notarized document back to the signer.
Additional notes on remote notarization:
- Governor’s Emergency Order No. 20-03-30-04 is temporary and may be amended or rescinded at any time.
- Available Technology Vendors include DocVerify, Notarize, NotaryCam, Pavaso, Safedocs, and SIGNiX – Facetime, Zoom, and Skype are not permissible. Further information is available and is being regularly updated at https://www.nationalnotary.org.
- The form to notify the Secretary of State in advance of remote notarization (see #2 above) can be found at: https://sos.maryland.gov/Notary/Pages/default.aspx. Notaries must submit the form and a copy of his or her current notary commission via email to: email@example.com.
The Emergency Orders in Practice.
Using the approved Technology Vendors, Maryland residents may electronically execute estate planning documents under essentially the same requirements of current Maryland law. The Orders add the additional requirements that (i) the witnessing parties be Maryland residents, (ii) all parties execute the document under attorney supervision, and (iii) the parties do so concurrently, in one another’s virtual presence. If a notarization is required, the signer or practicing attorney should verify that the notary has fully performed his or her “remote notarization” requirements, including the retention of the audio-visual recording of the execution, and submission of the notarial certification.
The “stay-at-home” order will no longer prevent you from planning for your future. Contact my office now to set up a telephone or video conference for an initial estate planning meeting or estate planning update.
I hope that this information and our client services will give you piece of mind during this unprecedented health emergency.