To help our clients navigate the coronavirus (“COVID-19”) crisis, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, April 8, 2020. Many situations are so fact specific and nuanced that this Legal Alert only addresses some of the more pressing ongoing issues. The discussion below is therefore general and does not address all considerations and specific analyses that may need to be undertaken prior to taking action.
On April 7, 2020, New York Governor Andrew Cuomo signed an executive order permitting certain estate planning documents to be witnessed virtually using audio-video technology (e.g., Zoom video conferencing, GoToMeeting). Governor Cuomo’s actions were a necessary step, given that individuals cannot freely travel and, now more than ever, need to ensure that their estate plans are in order.
Due to the expansive and uncertain nature of the COVID-19 pandemic, many individuals have begun to realize that they may need to draft new or revise their existing estate planning documents, including Wills, Trusts and Health Care Proxies. New York law requires that each of these documents be executed in the physical presence of witnesses. Because of the pandemic and the stay-at-home order of Governor Cuomo, the execution of documents in the presence of an attorney and witnesses would be unsafe and against the law.
Governor Cuomo’s executive order facilitates the execution of estate planning documents in this environment. The order provides a safe way for New Yorkers to have their estate planning documents executed outside of office conferences with counsel and without the need for the execution to be witnessed in-person.
The full text of Executive Order 202.14 can be accessed here. In summary —
For the purposes of the execution of Wills, Trusts, Health Care Proxies, Statutory Gifts Riders, Appointments of Agents to Control Dispositions of Remains and documents related to the recording of instruments affecting real property, the act of witnessing that is required under the aforementioned documents is authorized to be performed utilizing audio-video technology through May 7, 2020, provided that the following conditions are met:
- The person requesting that his or her signature be witnessed, if not personally known to the witnesses, must present valid photo identification to the witnesses during the audio-video conference. The presentation of valid photo identification to the witnesses prior to or after the video conference is not sufficient.
- The video conference must allow for direct interaction between the person and the witnesses, and the supervising attorney, if applicable. The witnesses cannot witness pre-recorded videos of the person signing.
- The witnesses must receive a legible copy of the signature pages, which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person.
- The witnesses may sign the transmitted copy of the signature pages and transmit the same back to the person.
- The witnesses may repeat the witnessing of the original signature pages as of the date of execution provided the witnesses receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.
This procedure provides a safe and legally enforceable way for New Yorkers to have estate planning documents executed outside of the physical presence of counsel and required witnesses.
Prior Keane & Beane Covid-19 Legal Alerts
Keane & Beane, P.C. has prepared several Legal Alerts concerning the Federal and State response to COVID-19 and the impacts on employers and local governments. Our Legal Alerts are available here.
Consult Counsel Regarding Specific Questions Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Trust and Estates Practice Group with questions regarding specific situations. We note that there are legislative developments in Congress and New York which impact each of these questions, and which we are closely monitoring. Because of the frequent developments, you should consult counsel regarding specific questions. For questions on trust and estates issues contact Steven A. Schurkman, Jeffrey Cohen, David Glasser, Patrick J. O’Sullivan, Christopher Aventuro or any other attorney in our Trust and Estates Practice Group.
