A Socially Distanced Ceremony: Virtual Execution of Estate Planning Documents

Remote witnessing and notarization is becoming increasingly more common for executing estate planning documents. To do this, a witness or notary can use two-way audio-video communication technology to witness or notarize an act instead of doing so in person. As of June 2020, at least 44 US states now allow remote witnessing and/or notarization in some form, be it permanently by statute or temporarily by governor’s order.

Just as execution requirements for wills, trusts, powers of attorney, and advance healthcare directives (or healthcare powers of attorney) vary widely between states, so do the requirements for remote execution of those documents during the COVID-19 pandemic. Many states allow for remote witnessing, while others have temporarily suspended witness requirements for all documents aside from wills. There are also certain states requiring notaries to be specially registered as an “online notary” or require specific software to be used to record the videoconference. Below are the estate planning document execution requirements in Illinois:

Illinois Governor J. B. Pritzker issued Executive Order 2020-14 on March 26, 2020. It was then amended and re-issued by Executive Order 2020-33 on April 30, 2020, and again re-issued by Executive Order 2020-39 on May 29, 2020. These orders allow for remote witnessing and notarization procedures.

On June 12, 2020, Governor Pritzker signed SB 2135 into law, providing statutory authorization for virtual executions. Under this law, the requirement that a person “appear before” an Illinois notary public under the Illinois Notary Act is satisfied if the notary public performs a remote notarization via two-way audio-video communication technology. The notary public must also be physically within the State of Illinois while performing the notarial act.

Any act of witnessing required by Illinois law may also be completed by two-way audio-video communication technology, following specific procedures.

Will: A will must be signed by the testator (or by someone in that individual’s presence and by their direction) in the presence of two credible witnesses, according to Illinois law, but a notary is not required.

Revocable Trust: A revocable trust does not need to be witnessed or notarized to be effective in the state of Illinois.

Healthcare Power of Attorney: In Illinois, a healthcare power of attorney must be signed before one witness who is subject to certain qualifications.

Property Power of Attorney: A property power of attorney is required by state law to be signed before at least one witness and acknowledged before a notary public (the witness is also subject to certain qualifications).

For assistance with preparing and executing your estate planning documents, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC at 708 482 7090 for our main office in LaGrange, Illinois or at 847 656 8958 for our Northbrook, Illinois office.