A few weeks ago, I shared an overview of remote notarizations in Colorado. The Governor’s executive order suspending the requirement for a notary public to be physically present with the signer, along with the emergency notary rules surrounding a notarization via real-time audio-video communication issued by the Colorado Secretary of State, have given practitioners the ability to help their clients execute estate planning documents in a safer environment during the pandemic, and for the future. However, while the ability to notarize documents remotely has proven helpful, estate planners were still faced with the particular challenge involving the execution of documents that require witnesses, and how to execute a fully signed, notarized and witnessed original Will.
Earlier this year, the Colorado Supreme Court promulgated Rules 91 and 92 of the Colorado Probate Rules allowing for the remote witnessing of certain specified documents. See here. These rules were effective immediately and are in effect during any period of a public health crisis declared in Colorado requiring physical and social distancing. Rule 91 details the procedure for remote witnessing of certain non-testamentary documents, including living wills, anatomical gifts and medical powers of attorney. Rule 92 allows for remote witnesses on last wills and testaments.
Both Rule 91 and 92 require scripts to be used during the signing ceremony, electronic transmittal of documents between signer and witnesses, and the use of a specific certification of the remotely located witness(es).
In the case of Wills, only certain individuals can serve as a remotely located witness, namely the testator/rix’s estate planning attorney or another member of the attorney’s law firm or non-attorney staff. Original Wills must also be presented to the supervising attorney for certification by the witnesses within a reasonable time of the video execution for duplicate execution of the original by those witnesses. It is also important to note that wills which are executed using remotely located witnesses must be submitted to probate after the testator’s death via formal proceedings.
We have conducted execution ceremonies with our clients where the witnesses were physically located with the signer, using masks and safely distanced, but on the same video conference with the notary on the other end.
But when that is not possible, Rules 91 and 92 do provide a current option for practitioners and their clients to ensure fully and properly executed documents; however, it is crucial that the details laid out in the rules are carefully followed.