The global pandemic has changed the way lawyers interact with clients. Meetings are now routinely held virtually and many people have adapted to the convenience of meeting from home. While virtual meetings will become part of the new normal, there is often no substitute for in person interactions. Many people prefer in-person meetings, and for those individuals there will be a return to the pre-pandemic normal. They are happy to leave virtual meetings behind and return to face-to-face interactions.
For estate planning purposes, not all meetings can be virtual nor should they be. Documents need to be signed and notarized. While some states allow for virtual notarization – and many states adopted some form of emergency virtual notarization law during the COVID crisis – it doesn’t mean you should sign a document virtually simply because you can. There are circumstances where a wet signature signed in person with a notary is the best course of action.
Here are five considerations in deciding whether virtual or in-person notarization is best for your situation:
• Know your state’s laws. Every state’s laws differ as to how documents can be notarized. Many states have enacted laws allowing for virtual notarization particularly during the pandemic. You need to find out whether those laws will stay in place post-pandemic or whether they were just emergency laws that will soon expire. It is important to follow your state’s laws so that your document cannot be challenged in the future as not having been properly notarized.
• Location matters. Be mindful that some states require you to be physically located in their state to take advantage of their virtual notarization laws. For instance, under New Hampshire’s emergency virtualization law if you were physically located in Massachusetts, you could not virtually sign a document with a New Hampshire notary unless the document was related to a New Hampshire matter.
• E-signatures v. wet signatures. Some states allow documents to be signed and notarized via a service such as docusign. That will produce a document with electronic signatures. Other states require that the notary sees you sign the document during a virtual meeting and then you overnight the document to the notary to complete the notarization. That produces a document with wet signatures. E-signatures are relatively new and therefore have not been challenged much in the courts. If your document may be challenged in the future, a wet signature is preferred.
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• Be mindful of possible lawsuits. If you think your estate plan may be challenged after your death (for instance, if you are cutting a child out of your will), steer clear of virtual signings. You do not want to give a potential disgruntled heir any more reason to challenge the validity of your will. Plus, the reliance on technology as part of the signing process can lead to mishaps. Stick to the safer route and meet with a notary in person.
• Don’t take chances with prenuptial agreements. The best practice is to have prenuptial agreements signed in front of a notary. Virtual signatures can lead to possible challenges down the road. You do not want your agreement thrown out in court because it was not properly signed. Recently, a client who lived in Massachusetts signed his prenuptial agreement that was governed by New York law in Florida as part of a virtual notarization. That is a recipe for disaster. The validity of the signatures may be attacked in the future. Plus, the question of which state’s law to apply may present additional challenges.
If there is ever a question that a document could be challenged you should avoid virtual notarization. The convenience does not outweigh the risk. Also, if you are thinking about using a virtual signature, check with your attorney. He or she can advise as to the specifics of your situation.