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The Coronavirus (COVID-19) outbreak has many people considering their wills, trusts and estate plans. Our Wills, Trusts and Estates team is working remotely to accommodate new and existing clients in these matters, as Pennsylvania Governor Tom Wolf has ordered all state law firms to close their physical offices. This poses a challenge, as Pennsylvania does not allow for the execution of documents by electronic signature. Here are the minimum requirements for valid execution of common estate planning documents during the Coronavirus outbreak:
Pursuant to Section 2502 of the PEF Code, a Pennsylvania Will must be in writing and signed by an individual (known as the “Testator”) at the end of the document. As long as the Testator can sign his or her own name, no witnesses or notarization is required. However, it is always recommended that the Will be witnessed and notarized to ensure that the Will is accepted to probate after the Testator’s death and to minimize the risk of anyone challenging the Will as a valid document.
If the Will does not include a self-proving affidavit (signed by the Testator, two witnesses, and a notary), then the county Register of Wills office will likely require affidavits to be signed by witnesses to confirm that the signature on the Will document was the signature of the Testator.
Pursuant to Section 5601(b) of the PEF Code, a Pennsylvania Power of Attorney must be signed by the individual (known as the “Principal”), two witnesses, and a notary. The witnesses and notary cannot be anyone named within the Power of Attorney document as the Agent. An individual cannot be both a witness and the notary.
An “Advance Health Care Directive” can be a health care power of attorney, a living will, or a combination of both. Pursuant to Sections 5442 and 5452 of the PEF Code, a Pennsylvania Advance Health Care Directive must be signed by the Principal and two witnesses.
Unlike the requirements for a Power of Attorney, a notary is not necessary and there is no prohibition against any individual named in the document as an Agent to sign the document as a witness.
Pursuant to Section 7732 of the PEF Code, a Trust must be signed by an individual (known as the “Settlor”). A Trust document does not require the signature of any witnesses or notary.
If an individual is unable to sign his or her name to any of these documents, that individual may be able to validly execute the document with a mark or by directing another person to sign on his or her behalf. However, if the document is executed by a mark or by someone else, then additional requirements apply for the execution to be valid.
Pennsylvania does not allow for the execution of documents by electronic signature, even during the Coronavirus outbreak. The individual signing the document must use a physical pen and paper. Additionally, when witnesses and a notary are required, those individuals must sign at the same time and in the physical presence of the individual signing the document. Therefore, witnessing and notarization may not be validly done electronically through services such as Skype, Zoom, or Facetime.
Our team is dedicated to helping our clients with estate planning during the Coronavirus outbreak, while balancing the health and safety of our employees. However, like all law firms and most businesses in Pennsylvania, our capabilities have been limited due to Governor Wolf’s Order. Therefore, we are unable to meet with our clients in person until further notice.
In the meantime, our attorneys are working remotely from home, and we have full access to our electronic files, and are available to our clients by phone, email and video conferencing. We will continue to work with our clients to modify their documents so that they may sign as many of their documents as is reasonably possible during this pandemic.
After our government and health care leaders have been able to obtain better control of the situation, we will follow up with our clients and encourage them to re-sign these documents with independent witnesses and a notary to ensure minimal risk of the documents ever being challenged.
UPDATE (APRIL 7, 2020): On April 2, 2020, the Department of State announced that Pennsylvania has provided a temporary limited suspension of the Pennsylvania statute which requires physical presence of notaries. Specifically, this temporary limited suspension applies to notarization of Wills, Powers of Attorney, and Advance Health Care Directives. Although this requirement is temporarily suspended, Pennsylvania notaries must first submit an application so that they are permitted to notarize documents remotely and they must then partner with a vendor to provide the proper platform to notarize remotely.
As of the date of this update, the Department of State has been flooded with thousands of applications from notaries and anticipates that Pennsylvania notaries will not be ready to notarize documents remotely for at least another week.
Do not hesitate to call or email a member of our team at any time. We are here to help with your estate planning needs during this coronavirus pandemic, as we were before and will be afterwards!