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Can I Virtually Execute My Estate Planning Documents?

By November 9, 2020 No Comments

By the Law Offices of Lisa C. Bryant, INC.

The pandemic has touched our lives in many unforeseen ways. It has served as a wake-up call for many to get their estate planning done. Many attorneys are meeting with clients virtually or by phone; however, for estate planning, many documents require witnesses and/or notarization.

In California, a will requires two witnesses (but also allows holographic/hand-written wills to be admitted to probate and has codified harmless error rule, which allows a will that is not validly signed to be admitted to probate if there is clear and convincing evidence the testator intended it to be a will). A living trust is required to be notarized if it is going to serve as a vehicle to transfer real property. For most Californians, the whole reason to create a living trust is to ensure that your personal residence is passed on to beneficiaries without probate. So, for most notarization of a living trust will be required.

Notaries have been considered an essential service throughout the pandemic and therefore have always been available to meet in-person. Additionally, some estate planning attorneys are notaries themselves and can notarize documents for their clients. Those that are still concerned with trying to mitigate exposure; however, may be wondering if there are any virtual alternatives. DocuSign is used by many in the financial and real estate industries and is software that provides a secure way for signatures to be taken virtually on a mobile device. A secure signature; however, is not the same as ensuring that the signature was witnessed or notarized and would not meet legal requirements. Additionally, California does not provide for remote witnessing or notarization. As of the publication of this article, a remote online notarization bill has been introduced to the California state legislature; however, it is still in committee process.

California’s Secretary of State has advised that “California citizens who wish to have their documents notarized remotely can obtain notarial services in another state that currently provides remote online notarization. California Civil Code 1189(b) provides that any certificate of acknowledgment taken in another place shall be sufficient in this state if it is taken in accordance with the law of the place where the acknowledgment is made.” Notably, Montana Notaries are permitted to perform remote notarizations for signers outside the state.

If you are considering updating your estate planning documents, ensure that you execute them in accordance with California law or your family will have difficulty relying on them later. If you have questions about your current estate plan or about beginning an estate plan, do not hesitate to call the Law Offices of Lisa C. Bryant INC at (408) 286-2122 to schedule your complimentary consultation.

All materials have been prepared for general information purposes only to permit you to learn more about our firm, our services and the experience of our attorneys. The information presented is not legal advice, is not to be acted on as such, and may be subject to change without notice.