Electronic Will Signings? An Estate Planning Disaster Waiting to Happen

Today we're going to talk about a hot topic, and I keep getting questions about this: “Hey, can't we just remotely sign our estate planning documents?”

The simple answer is “no.” In addition to it not being even legal at this time (at least in the State of North Carolina), it is also just a bad, bad, bad idea, and there are five big reasons why:

1. It's probably not even legal in your state. In North Carolina, a Will and Revocable or Irrevocable trusts are not allowed to be executed remotely as specific exceptions under state law. This list also includes death beneficiary forms that require an acknowledgement (notarized), which means things like 401k change of beneficiary forms that needs to be notarized cannot be done remotely. And even if it became legal in North Carolina at some point, what happens if you move and pass on in another state that doesn’t recognize digital signings? It might not be recognized under that state’s law rendering the plan meaningless.
2. Legal notarization require in-person identification. If the notary is not in the presence of the signer and witnesses, then they can't notarize the documents anyway. In a “self-proving” estate planning document that requires witnesses, the notary is not just attesting to your signing your own document but also that the witnesses saw you sign it in their presence. The notary also has to check everyone’s identification in person, and they need to make sure all of the processes and procedures are done. If this is not done, then all of the witnesses will have to testify later, after death, that the documents were signed appropriately. That can become a mess, which is why law firms execute these documents with a notary present as a standard procedure.
3. Questions on Document Signed. Did the witnesses actually see the signature happening on the estate planning document, or was it some other document? How can the witness say for sure it was the same legal document if they weren’t physically in their presence? These are questions that are coming not in a few months or a few years, but potentially decades later. If it is ink on paper with a notarization, then this question doesn’t come up.
4. Off-Camera Influence. Is anybody off camera and out of the view of the witnesses trying to influence them? Again, challenges to an estate plan years down the road with witnesses being brought to court, can they state that no one else was in the room with the signer influencing their decision to sign the document? When signing documents in-person in our conference room, everyone can see who is in the room, and there are no outside parties out of view trying to convince anyone else to sign a document. Imagine this question in court: “Mr. Jones, when Ms. Smith was signing her Will remotely that left everything to her son Jonathan while cutting out his three sisters, Ms. Smith was at her house and her son Jonathan, who was known to always carry a gun, was allegedly outside at the time, but can you be certain Jonathan wasn’t next to her, off-screen, holding his gun while motioning for her to sign? Can you be absolutely sure Jonathan wasn’t in the room with Ms. Smith?” Well, we don’t know, and if you don’t think a question like that isn’t going to come up in the future, then I have a bridge to sell you.
5. Was the Signer of “Sound Mind”?: Communication is not just verbal, and there are physical cues that can cause people to question someone’s competency that you cannot see through a camera. If someone is excessively fidgeting under the table, looking lost, or having subtle signs of anxiety but it is on a framed shot from a camera, then questions of their behavior may be brought up in court down the road in challenging the document.

In the post-lockdown world, some people who adapted to remote communications and processes are reluctant to go back to in-person meetings. It’s far easier an convenient to handle things remotely, and my office has adapted to those desires with a lot more conference calls and Zoom meetings. And there are some cases with clients traveling or living out of state for several months at a time that can make in-person meetings extremely inconvenient. However, even if everything else in the planning process can be handled remotely, the signing of estate planning documents needs to be in-person.