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Know the Law: Signing Estate Planning Documents Remotely

Written by: Christina L. Krakoff

Published in the Union Leader (1/31/2021)

Q: I want to sign my estate planning documents, but am concerned about the spread of COVID-19 and meeting others in person. Is there a way to sign documents remotely in New Hampshire?

A. The Coronavirus Pandemic has dramatically changed the way we conduct day to day business. Luckily there are ways to sign important estate planning documents “remotely” without requiring you to be in close contact with others. On March 23, 2020, Governor Sununu issued Emergency Order #11 pursuant to Executive Order 2020-04 creating an exception to the requirement that the signer personally appear before a notarial officer. Instead, a notarial officer may now notarize a signing through video and audio conference where the signer is in a different physical location.

On July 17, 2020, the state legislature enacted corresponding legislation specifically for estate planning documents. House Bill 1249 temporarily allows remote notarization of paper estate planning documents during the state of emergency declared by Executive Order 2020-04 and is effective from March 23, 2020 until the last day of the state of emergency.

The Bill suspends the personal appearance requirement for signing an “estate planning instrument” such as a will, trust, or powers of attorney. For remote notarization to be effective, the Notary must be (i) an attorney licensed to practice law in New Hampshire in good standing who drafted the document, (ii) an attorney licensed to practice law in New Hampshire in good standing under the drafting attorney’s supervision, or (iii) a paralegal under the supervision of either such attorney. The Notary acting must be able to communicate simultaneously by sight and sound through an electronic device or process at the time of the act. For example, this could be accomplished through a video conference on Zoom, Skype, or Google Hangouts.

The Bill also provides that a witness to a person signing a will or codicil (amendment to a will) will be treated as if they were in the physical presence of the signer (a “testator”) if the witness can also communicate with the testator, other witnesses and the qualifying notary simultaneously by sight and sound through electronic device or process. The witness does not even need to be located in New Hampshire at the time of the act. This is especially helpful as many people are choosing to stay home and do not have eligible witnesses residing with them.

House Bill 1249 provides many with the opportunity to safely execute estate planning documents during the State of Emergency declared by Executive order 2020-04.

Christina Krakoff can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association.  Questions and ideas for future columns should be emailed to [email protected].  Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation.

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