Tuesday, March 31, 2020

Executing a New Will While in Quarantine? Avoid Will Deals That Seem too Good to be True

COVID-19 uncertainty is causing many people to rethink their wills and advanced directives.

With the acceptance of video notarization, which we blogged about HERE, many attorneys are advertising remote will execution ceremonies that remove the traditional requirement that the testator execute their will in a room with two witnesses and an attorney. The seeming ease of a remote will execution has caused a race to the bottom as attorneys compete on price for business. Things have gotten so desperate that I've seen an attorney advertise a will for $100.00. Is it too good to be true?

While the availability of remote notarization does make remote will execution ceremonies possible, it is important not to forget the fundamental requirements of a will signing. If your will is rejected by the Surrogate's Court because you failed to conform to the requirements of EPTL §3-2.1 all of your estate planning and forward thinking may have been for nothing. Avoid the nightmare scenario of your well-intentioned plans falling apart. 

The following is a list of some considerations which your attorney should be addressing when deciding how they are going to conduct a remote will execution ceremony:
    1. Your attorney must draft a will that conforms to your intentions.
    2. You must execute your will in the presence of two witnesses, or your signature must be acknowledged to the witnesses after it has already been affixed. Your remote execution procedure must qualify as "in the presence of". 
    3. Your witnesses must sign the will itself within thirty days of one another. 
    4. Your witnesses should sign affidavits attesting to the proper execution of your will. 
    5. Your attorney should sign an attorney draftsman's affidavit. 
    6. Your witnesses' affidavits should be notarized, and your attorney draftsman's affidavit should be notarized. 
    7. Your original signature, the witnesses' original signatures, the attorney draftsman's original signature, and the notary's original signatures should all be combined into one original document which can be presented for probate. 

If you think your attorney can do all of that for $100.00, it's probably too good to be true.


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