Witnessing and Notarizing Estate Planning Documents During COVID-19

The COVID-19 pandemic has complicated the process of finalizing estate planning documents by making it harder to gather witnesses or to visit a notary public. Thankfully, you have some options.

Get Creative for Witness Signatures. Witnesses for wills cannot be beneficiaries of the will, and witnesses for health care directives cannot be the person you name as an agent. That means that the people in your "bubble" (like your family members) are often the very people who cannot witness your estate planning documents. You may have to get creative to get the signatures of neighbors, friends, or acquaintances. For example, you could ask members of your book club to meet you in your yard, at a park, or in a parking lot, keeping a safe distance from each other. You would sign the document, walk away from it, and then one at a time the witnesses can move forward to sign it. You might have everyone bring their own pen.

Use a Mobile Notary. In most places, notary publics are considered essential workers, and you may be able to get a mobile notary to come to you. It will cost more, but it's a good option if you can't get yourself to a notary. Search for mobile notaries online, and be sure to ask about the precautions they take to protect you and themselves against COVID.

Use Remote Notarization. Many states have relaxed their restrictions on remote notarization, so you may be able to have your self-proving affidavit (for your will), power of attorney, transfer on death deed, or health care directive notarized remotely. Remote notarization is a relatively new and somewhat complicated process in most states, but it's certainly one of the safest options. Notaries in your area should know what is permitted and what rules must be followed. Some states are allowing remote notarization only temporarily during the COVID crisis. To find out about the current rules in your state, go to the website of the National Notary Association.

Make an Electronic Will. Electronic wills are not yet widely available, but few states allow you to make, sign, and witness a will entirely electronically. Other states are allowing electronic wills just during COVID. The rules for making electronic wills vary widely by state, and they are unfamiliar even to most lawyers. However, the American College of Trust and Estate Counsel (ACTEC) is keeping on top of each state's rules, so you can go to its website to see if electronic wills are an option for you.

Finally, if you cannot get the witness or notary signatures you need for your health care directive, do not let this stop you from expressing your wishes to those who will make decisions for you if you become too sick to make decisions yourself. You could even share your unfinalized document with them—it might not be legally binding, but at least they would have a better understanding of what you want.