Virtual Witnessing during COVID-19

While the country continues to adjust to the "new normal," of stay at home orders and social distancing, the State of Illinois is quickly adapting to remote witnessing of estate plan documents. These measures are only temporary implementations, but they allow people to safely create estate planning and other documents to ensure that their assets are protected.

While the new executive orders are only temporary, they allow a process as critical as the Estate Plan process to continue during these uncertain times. Estate Planning is often an afterthought for most people until a significant event occurs which motivates individuals to get their affairs in order. Consequently, the COVID-19 pandemic has motivated thousands across the country to draft or update important estate plan documents like Powers of Attorney for Healthcare to ensure that they are delegating their power to make healthcare-related decisions on their behalf to the correct people. 

Therefore, these estate planning documents have become more critical than ever before. Thanks to new executive orders and regulations in Illinois, there is no need for a signatory, witness, and notary to all be in the same room during the signing process. In fact, so long as certain guidelines are closely adhered to, a signatory can effectively execute all of their estate plan documents in the comfort of their own home, miles away from their witnesses.

In order to safely notarize and witness documents while remaining in compliance with the new Illinois regulations, there are a few guidelines that must be followed;

• The remote notarization must be conducted on a two-way, real-time audio-video communication that allows for direct interaction. The picture on the communication must be clear so that the State ID/credentials of the notary are visible to the signatory. While it may differ in other states, standard video conferencing servicing applications such as Google Hangouts, Zoom, and Skype for Business are permitted methods of conferencing the signing in Illinois.

• The entire virtual signing must be recorded. Additionally, the recording must be kept for at least three years after the date of signing. 

• Before the witnessing commences, witnesses and notaries must affirmatively state on record their name, and that they are currently located in the state of Illinois.

• The signatory must show the notary and witness every page of the estate plan document. This must be the case for every document, including Wills, Trusts, Durable Financial Powers of Attorney, Powers of Attorney for Healthcare, and any other document a signatory may be executing in front of the witnesses. 

• The signatory must transmit, either electronically or by fax, a legible copy of the entire signed document directly to the witness no later than twenty-four hours after the document is signed The witness must sign the transmitted copy of the document and transmit the signed copy of the document back either electronically or via fax to the signatory within 24 hours of receipt.

• If necessary, the witness may sign the original signed document as of the date of the original execution by the signatory provided that the witness receives the original signed document together with the electronically witnessed copy within thirty days from the date of the remote witnessing. 

Moreover, trust and estate laws have not often been prone to change and modification. While time will tell whether these orders become modified further to include electronic signature applications such as Docusign, Adobe EchoSign and HelloSign, the allowance of any act of witnessing to be completed remotely by two-way audio-video communication technology is a necessary progress to ensure that individuals can safely and securely distribute their assets.

If you have any questions about tax and estate planning, please feel free to contact Glick and Trostin, LLC at 312-346-8258.

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