Recent North Carolina law changes allow for the remote execution of estate planning documents that have historically required in-person witnessing and notarization. The changes include: (i) video notarization of documents, (ii) suspension of the requirement that certain health care directives be signed in the presence of two witnesses, and (iii) allowing for the video notarization and witnessing of wills.
This law permits and sets forth the special requirements for emergency video notarization of documents. Wills, trusts, powers of attorney, and certain health care directives may be signed using video conferencing technology as long as the individual and notary are both physically present in the state of North Carolina. This method of video notarization may be used until the law expires on August 1, 2020. Any documents notarized during this period remain effective beyond August 1, 2020.
In addition, the law temporarily suspends the requirement that a health care power of attorney and advanced directive for a natural death (also known as a living will) be executed in the presence of two witnesses (in addition to the notary). This means that the documents may be signed by the individual and a notary without additional witnesses only as long as a State of Emergency order is in effect. Any documents executed during this period remain effective beyond the State of Emergency.
While not included in the new law, individuals continue to have the option of registering health care directives with the North Carolina Secretary of State Advance Health Care Directive Registry. Once the documents are registered, individuals will be mailed wallet-size cards that allow for the access of the documents by anyone in possession of the cards, including first responders or other medical personnel.
Finally, while an individual’s will must continue to be executed in the presence of two witnesses and a notary, the witnesses, like the notary, may be “present” and attest to the signing by video conference. This means that the individual, witnesses, and notary all may participate in the will signing remotely without being in close physical proximity to one another until the law expires on August 1, 2020.
It is important to note that the new law does not expand current law to allow for electronic signing of these documents; rather, it provides an additional method for witnessing and notarizing paper documents that are being signed remotely. In addition, the electronic notary and witness requirements include a specific notary certification, document delivery requirements, and notary documentation.
Many individuals delay the unpleasant task of reviewing their estate planning documents periodically to confirm that the appropriate individuals are named to make health care/financial decisions and to serve as guardians of minor children. With additional time at home and increased health care concerns, individuals may be re-evaluating these choices.
Manning Fulton has an electronic questionnaire available to clients by email. Once the completed questionnaire is reviewed by and discussed with one of our estate planning attorneys, clients may decide to update their estate planning documents. The recent law changes provide an option to maintain social distancing while gaining peace of mind that estate planning documents have been updated to reflect current wishes.
If you would like to receive an estate planning questionnaire or additional information on how to maintain social distancing while updating your estate planning, please contact one of our estate planning attorneys. We remain available to assist you safely during these challenging times.