Much has changed since most of Florida is under a quarantine or social-distancing orders.
We’re all worried and plenty of procrastinators are regretting putting their important affairs in order. Don’t beat yourself up. Even in the best of times, estate planning and incapacity planning are often things that people put off because no one likes thinking about getting older, sicker and passing away.
But, in the midst of a pandemic, many can’t help but wonder (a) who will make my medical decisions if I cannot make them myself; (b) who will get my assets should the worst happen; and/or(c) my estate plan was put together so many years ago, that my beneficiaries and key-decision-makers have changed.
This article will discuss, as of May, 2020, what estate planning, incapacity planning and Medicaid planning documents can be executed in total quarantine or under a social-distancing perspective.
Can I use Remote Online Notarization or Electronic Notarization for my Important Planning Documents?
The answer is: as of July 1, 2020, YES. If you are reading this article on Florida remote online notarizations prior to July 1, then it depends on the document.
First - “Electronic Notarization”and “Online Notarization” are both terms for what the law actually calls “Remote Online Notarization.”
The electronic notarization law went into effect on January 1, 2020 nearly all documents, except for those that fall under the category of “electronic wills.” This Electronic Will Category also encompasses trusts that are testamentary (i.e. dispose of property after you pass away), a typical example is what we commonly refer to as revocable trusts, living trusts, or revocable living trusts. This also includes health care advanced directives (health care surrogacy designations and living wills) and a durable power of attorney.
In other words, Wills, Trusts, Healthcare Directives and Durable Powers of Attorneys, cannot be notarized until July 1, 2020.
Even after July 1, 2020, those adults who are deemed "vulnerable" under Florida statutes 409.102 will be prohibited from remote online / electronic notarization. The statute defines a vulnerable adult as:
a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.
What Estate Planning Documents Can I Sign Without a Notary?
But until July, it’s important to remember that most estate planning documents don’t require notarization. Below are the most common Florida Estate Planning documents that do not need a notary present in Florida.
You may be surprised to hear that most Florida estate planning documents just need two witnesses, and not a notary. Notaries are often advised and included as an extra precaution but, from a strict legal standpoint, not absolutely necessary.
Last Will and Testaments (i.e. what is commonly just called a “Will”), Healthcare Surrogate Designations, Living Wills and even Revocable Trusts do not require notarization in Florida.
Last Will and Testament – Does not require a notary to be valid
Wills need two witnesses to be in the physical presence of the signor (at the same time).
Of course, the best practice is for the witnesses to be “disinterested” (i.e. not someone who would inherit anything). The reason is because of the witnesses are also heirs, there is more likely to have been foul play and the Will can more easily be challenged by those, especially disinherited children, who want to contest the validity of the Will But Florida Statute, Section 732.504 specifically says that any competent person may act as a witness to a Last Will and the document cannot be declared invalid just because witness is interested.
There is an optional portion of a Will called a “Self-Proving Affidavit.” This prevents the witnesses from being called into court, when a Will is submitted to probate, to verify that they saw the testator sign the Last Will and Testament. If your Will has a Self-Proving Affidavit, the Florida Will can be submitted to commence probate quicker.
During the pandemic and before July 1, 2020, we can get a Last Will and Testament signed now and either wait until July 1 for the Florida remote online notarization process to be allowed (to complete the Self Proving Affidavit), or get the witnesses in a room at a later date in front of a notary when the pandemics not an issue.
Even revocable trusts don’t technically require a notary…it’s just best practice.
In a Coronavirus / COVID-19 world where access to a notary may be limited, we may not be able to do things the ideal way. In fact, while its blasphemy to say in the estate planning lawyer world - there is an argument to be made why not everyone needs a will in Florida.
Healthcare Surrogate Designations and Living Wills Do Not Require Notarization
For a health care surrogate designations and living will to be valid, the principal must sign in the physical presence of two witnesses. The only two restrictions: (1) the actual health care surrogate (i.e. the person chosen as a health care decision maker) him or herself may not be a witness; and (2) at least one of the witnesses must not be the signor’s spouse or blood relative.
The same restrictions apply to the Designation of Healthcare Surrogate for a Minor Child. This is a very important, yet often overlooked, estate planning document that allows an adult to designate a non-parent / non-legal guardian to make healthcare decisions for their minor child should the child’s parent become incapacitated. See Fla. Stat. 765.2038.
What If There is No Health Care Surrogate Designation Signed?
If you don’t sign a health care surrogate designation, and are later in a position where you are unable to make healthcare decisions, the Healthcare Proxy Statute (Fla.Stat. 765.401) is invoked.
The Florida Health Care Proxy statute provides the following order of priority of those that would be able to make healthcare decisions:
- Judicially appointed guardian
- Adult Child (or majority of adult children available to the doctor)
- Adult Sibling (or majority of adult siblings available to the doctor)
- Adult relative of patient who has exhibited special care/concern for patient
- Close friend
- Clinical social worker selected by the provider’s bio-ethics committee
However, anecdotally, I can tell you that the reality is that without a healthcare surrogate, especially when quick decisions are required,doctors and other medical personnel will often listen to the first person who happens to show up.
How to Get Estate Planning Documents Signed that require the physical presence of two witnesses?
If you happen to live with your spouse and an adult child,you can sign a Last Will and Testament and they can be witnesses.
For healthcare surrogate designations or any other planning document that does not require notarization, we have people printing estate planning documents that our firm prepares, walking outside their house or apartment and having neighbors watching from 15 feet away each holding their own pen. The person making the will then walks the document to a table or chair ½ in between the other witnesses and sets the document down, the witnesses then take turns approaching and signing.
Which Florida Estate Planning Documents Always Require a Notary?
The power of attorney and deeds still require notarization. They are discussed in more detail below.
Florida Durable Power of Attorney Must Still be Notarized – Online Notarization Not Yet Possible
The Florida Power of Attorney will always require two independent witnesses and a notary. For the power of attorney, we will have to wait until July 1, 2020 when the remote online notarization is allowed for all estate planning documents (unless the legislature acts sooner) or, of course, when in-person meetings are once again safe.
Lady Bird Deeds Can be Electronically Notarized as of January 1, 2020.
In addition, all deeds in Florida (to transfer real property) still require a notary and two witnesses. The realtors must have had a better lobby effort than us estate planning attorneys, because deeds can be electronically witnessed and notarized online.
This means that (i) you can be at home, by yourself; (ii) the witnesses can be anywhere else; and (iii) the notary can be anywhere else in Florida, and the document can be fully executed and recorded.
Deeds can still be used to transfer property into revocable living trusts. Lady bird deeds can be signed, witnessed, and remotely notarized to provide for who will inherit property, outside of probate, after the property-owner passes away.
For many Floridians, their real estate is their biggest asset. The lady-bird deed can be an effective estate-planning tool. Its is not as flexible as utilizing a revocable living trust to hold and dispose of the real estate, but, again, in a COVID-19 quarantine world, it’s better than nothing. Click here for a video that compares lady bird deeds vs. revocable living trusts in Florida.
Utilizing a lady bird deed along with assigning pay-on-death beneficiaries on bank accounts, brokerage accounts, life insurance policies,and with 401ks and IRAs – which can often be done over the phone or online – which will also cause these assets to pass outside of probate.
Between lady bird deeds and assigning pay-on-death beneficiaries to financial accounts, much estate planning can be accomplished even while Coronavirus remains a threat.
Full electronic witnessing and online notarization / remote-online notarization / online notarization for all documents will not be fully available until July 1, 2020 (unless the law changes before then) - and even then, not to "vulnerable adults." But there are still many estate planning documents that can be signed without a notary. Nearly all of our Medicaid-planning documents can be signed, witnessed and notarized right now as well.