Many estate planning documents in Wisconsin are traditionally signed in the physical presence of a notary and witnesses. Social distancing and the COVID-19 pandemic have made signing estate planning documents in the physical presence of others challenging on the best days and impossible on many days.
Recent changes in Wisconsin law have allowed for some documents to be notarized remotely by utilizing specific remote notarization services. Unfortunately, the new law excludes most estate planning documents from remote notarization, and there is no clear legal guidance on whether remote witnessing is allowed.
The good news is that many common estate planning documents in Wisconsin do not require notarization or, in some cases, witnesses for them to be legally valid.
Wills – A last will and testament in Wisconsin must be signed in the conscious presence of two disinterested witnesses in order to be valid. Notarizing a will with a self-proving affidavit can help establish the validity of the will in probate court, but notarization is not required for a will made in Wisconsin to be valid.
Trusts – Revocable and irrevocable trusts in Wisconsin need only be signed by the person or persons creating the trust. There is no requirement that trusts be notarized or witnessed in Wisconsin.
Financial Powers of Attorney – There is no requirement in Wisconsin that a financial power of attorney (also known as a general durable power of attorney) be witnessed or notarized. A financial power of attorney that is notarized carries greater assurances of validity, but the notarization is not required for the document to be valid.
Health Care Powers of Attorney – Health care powers of attorney in Wisconsin must be signed by the principal in the presence of two qualified witnesses but do not have to be notarized.
Living Wills – Like health care powers of attorney, a living will in Wisconsin must be signed signed by the principal in the presence of two qualified witnesses but it does not have to be notarized.
HIPAA Powers of Attorney – Powers of attorney under the Health Insurance Portability and Accountability Act need not be witnessed or notarized.
Marital Property-Will Substitute Agreements – Marital property agreements that provide for disposing of property upon the death of one or both spouses without probate do not have to be notarized or witnessed.
So what is all the fuss about notarizing and witnessing estate planning documents?
Signing estate planning documents in front of a notary and witnesses helps to ensure the documents will be accepted and honored by courts, health care providers, and financial institutions. When presented with estate planning documents, these players must often assess whether the party that signed the document could be the victim of abuse or exploitation. Witnessing and notarization can help them resolve that question. Here are some reasons why:
Authenticity – Witnessing and notarizing estate planning documents helps establish that the person who signed the document is who they say they are, and not someone who forged the signature of the person whose name appears on the document.
Voluntariness – It also helps establish that the person who signed the document signed voluntarily, and was not coerced or unduly influenced to sign the document against his or her will.
Capacity – Signing estate planning documents before a notary and witnesses helps establish that the person who signed the document had the capacity to understand what they were signing at the time they signed it.
What about remote witnesses?
Wisconsin law is unclear about whether a person who witnesses an estate planning document has to be physically present with the person signing the document. Some authorities indicate that the witness need only be within the rage of any of the senses of the person signing the document. For example, being able to see the person signing the document via video conference might be sufficient. Other authorities indicate that witnesses, like notaries, must indeed be in the physical presence of the person signing the document at the time it is signed. Until the law in Wisconsin becomes more clear, utilizing remote witnessing for estate planning documents carries some risk.
What are the alternatives to remote notarization and witnessing?
Make the most of estate planning tools that do not require notarization or witnesses like trusts, financial powers of attorney, HIPAA powers of attorney, and marital property agreements.
Update the beneficiary designations and transfer on death designations for your life insurance, 401k, IRA, checking, savings, and other accounts at financial institutions. These designations are some of the most important and overlooked elements of an estate plan, particularly when it comes to avoiding probate. They usually do not require notarization or witnesses, and they can often be completed online from home.
When notarization and witnesses are required, utilize social distancing methods as much as possible. This could include using masks and gloves, witnessing through glass barriers, separating or “quarantining” documents for an appropriate length of time, and other methods that can be devised for adhering to federal, state, and local social distance guidelines.
If you sign your estate planning documents while social distancing is in effect, you might consider resigning the documents when you are able to safely do so in the physical presence of a notary and witnesses, depending the documents you utilized and the methods you used for signing the documents.
Should I just wait until the pandemic passes to make or update my estate plan?
When to engage in estate planning is something only you can decide. Certainly, it makes good logical sense to do everything you can to get your affairs in order while in the midst of a global public health crisis. Doing as much as can safely be done to move an estate plan along now might be the best option for some people to protect their family as much as possible. Perhaps you cannot accomplish everything you want to accomplish with your estate plan immediately, but you may be able to meet many of your estate planning goals now while maintaining social distancing. You can then come back and finish the plan as social distancing guidelines ease and allow for more person to person contact.
Fear not, brighter days are ahead.
James F. Guckenberg is an attorney with Halling & Cayo S.C. in Milwaukee, Wisconsin. He focuses his practice on estate planning, probate, and guardianships. Posts here are his own, do not offer legal advice or create an attorney-client relationship, and do not necessarily reflect the views of Halling & Cayo S.C.