On April 14, 2020, Governor Murphy signed legislation into law that allows public notaries and other individuals authorized to administer oaths and affidavits, such as attorneys, to authenticate documents remotely, including estate planning documents such as Wills and Codicils, for the duration of the COVID-19 emergency.
The legislation authorizes the use of audio-video technology, such as video communication via webcam or cellphone, by an individual as an acceptable means of appearing before a public notary or other authorized individual. There are various ways that the individual may prove his or her identity to the public notary or other authorized individual.
This legislation is an important step forward in allowing attorneys to assist clients in the execution of estate planning documents. Although, generally speaking, Wills and Codicils must also be executed in the presence of two witnesses in order to be presumptively valid, when a client already has those witnesses available, allowing a notary public or attorney to notarize a Will or Codicil will make the document “self-proving” under New Jersey law, which streamlines the probate process at death. Even if a client does not have the required witnesses available, remotely executing a Will or Codicil in the presence of a notary public or attorney will provide additional support that the Will or Codicil qualifies as a “writing intended to be a Will or Codicil” under New Jersey law that may be admitted to probate even without the required formalities of execution.
In addition, an Advance Directives for healthcare, which sets forth the maker’s wishes with respect to life-sustaining treatment and appoints someone to make medical decisions on the maker’s behalf in the event the maker is unable to do so, is valid when executed in the presence of a notary public or attorney. A Power of Attorney, which appoints someone to make financial decisions on behalf of the maker, is also valid when signed in the presence of a notary public or attorney. This legislation gives clients a better opportunity to meet the required formalities of execution in order for these documents to be considered valid.
Please contact Stephen J. Pagano, Lauren N. Spitser, or any member of Riker Danzig's Trusts & Estates Group to discuss the material contained in this Alert.
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