Over the past few weeks, our firm has continued to operate as normal. We have hosted face-to-face meetings in our office, as well as video calls, telephone calls and emails. We have, however, observed an increase in the number of new or existing clients who are addressing while in a “self-quarantine” or “shelter in place” situation. In this month’s update, I provide a brief summary of the signing formalities associated with the four “basic” estate planning documents.
- Signing Formalities: Bare Minimums and Best Practices
With each of the four basic estate planning documents, I want to distinguish between the minimum standards for proper execution with the best practices for the proper execution of legal documents. While the minimum standards may be relevant to those who are (or will be) in a “shelter in place” situation, it would be ideal for everyone executing estate planning documents to follow a best practice standard.
- Last Will & Testament
A Will is legally valid in Minnesota if the person signing the Will (called the “Testator”) is at least 18 years of age, signs his or her Will in the presence of any two individuals, and these two individuals sign the Will as witnesses. The statute specifies that these two witnesses can have any relationship with the Testator (e.g., a Will could be legally witnessed by a spouse and another family member). Therefore, in a “self-quarantine” situation, a Will could be signed at home, so long as two family members or other are physically present in the room, and these witnesses then immediately sign as witnesses to the Will.
A best practice approach, however, is to direct that both witnesses are individuals who are “disinterested;” that is, not related to the Testator. This serves to avoid any characterization that the Will was the product of undue influence. Additionally, our firm’s practice is to prepare a “Self-Proved Affidavit” to accompany the Will. This affidavit must be signed by the Testator, both of the witnesses, and notarized by a notary public. If a Self-Proved Affidavit is properly executed, it shifts the burden of proof to any party contesting the validity of the Will. Without question, the best practice is to take the necessary steps to have the Will signed under circumstances such that a Self-Proved Affidavit can also be properly executed.
- Health Care Directive:
A Minnesota resident may sign his or her health care directive in the presence of two witnesses or a notary public. If notarized, it can not be notarized by a health care provider or the person designated as the health care agent. If witnessed, it can not be witnessed by the health care agent or a health care provider. Similar to the formalities for signing a Will, it is possible for family members to serve as witnesses, so long as neither of those family members is named as the health care agent. The best practice approach is to have the document notarized by an unrelated notary public.
- Power of Attorney:
A Minnesota resident can appoint an “attorney-in-fact” under a power of attorney through any written document that is dated and signed. Any such signed and dated document is presumed to be valid even in the absence of a notary public signature. However, since a handwritten note is not likely to be accepted by a third-party custodian, it is certain the best practice approach to use the specific form endorsed by the legislature, called the “Minnesota Statutory Short Form Power of Attorney.” Unlike a “general” power of attorney, this “statutory” form power of attorney must be signed in the presence of a notary.
- Trust Agreement:
By law, a trust need not even be in writing; so long as the trust creator demonstrates an intention to create a trust, the agreement is legal. Any written trust agreement does not need to be signed in the presence of a notary public or witnesses; it can simply be signed and dated by the trust creator. The best practice for a Minnesota trust agreement, however, is to have the trust agreement signed in the presence of a notary public.
- In-Person and Virtual Notarization Requirements
The best practice standard for each of these documents includes the requirement that the document be notarized. For those under self-quarantine, the most significant logistical hurdle is the need to interact with a notary public. Under the Uniform Electronic Transactions Act enacted last January, Minnesota law allows for certain documents to be notarized by “virtual presence” (such as a video conference) rather than actual, physical presence. Unfortunately, estate planning documents were not included in this Act, such that, at least under current law, it is not possible to have Minnesota documents notarized by a “virtually present” notary. In light of the current crises, my sense is that these rules will soon be reformed to allow for estate planning documents to be signed in the “virtual presence” of a notary public.
- Providing Peace of Mind
Our firm’s mission is to provide clients the peace of mind that comes from knowing that their affairs are in order. For those clients who are self-quarantined, I recommend that they make every effort to sign documents using a best practice standard. Only if that is not possible should he or she follow the minimum standards I have summarized here. In such an event, once the self-quarantine period has passed, the documents could be reviewed and signed again using the best practice standard. It has been our firm’s policy, and will continue to be our policy, to meet personally with our clients to assist them execute their documents.