March 23, 2020 – The State Bar of Wisconsin is receiving numerous questions about the ability to notarize and execute legal documents, such as real estate documents, wills and other estate planning documents, in light of the coronavirus pandemic.
This article, reviewed and approved by the E-Notarization Committee of the State Bar’s Real Property, Probate and Trust Law (RPPT) Section, provides guidance.
At a Glance
In short, lawyers cannot do testamentary documents with remote notarization, whether that notary is in state or out-of-state. Lawyers can do real estate documents with remote notarization, but only if the notary is out-of-state.
A new law that allows remote notarization, 2019 Wisconsin Act 125, allows remote notarization but it does not take effect until May 1, 2020, and it does not apply to estate planning and other documents, such as wills, trusts, and powers of attorney.
Emergency guidance issued by the Wisconsin Department of Financial Institutions allows remote notarization of certain documents effective now, but the emergency rule still does not authorize remote notarizations for estate planning documents.
DFI issued a revised version of the emergency rule on March 20, 2020, at the request of the State Bar of Wisconsin, removing language that suggested remote notarizations could be performed for estate planning documents.
Finally, remote notarization is different than other execution requirements that help to ensure a document is valid, such as the witnessing of a will. The remainder of this article goes into more details on these issues, and will be updated as needed.
Emergency Guidance on Remote Notarization
The Wisconsin Department of Financial Institutions (DFI) issued Emergency Guidance on Remote Notarization (updated March 20, 2020), which is an emergency rule promulgated under current law. Under current law, remote notarization is not allowed.
However, under the emergency rule, for documents requiring notarization, DFI is allowing remote notarization through approved providers, such as NotaryCam and Notarize, by notaries in states where remote notarizations can be legally performed.
A new law, 2019 Wisconsin Act 125, allows notaries commissioned in Wisconsin to notarize remotely, but that law does not take effect until May 1, 2020.
The emergency rule says approved providers “may use out-of-state notaries trained and authorized to perform remote online notarizations” and “notarial acts performed by an out-of-state notary public have the same effect” as if performed in Wisconsin.
In short, attorneys needing documents to be notarized should have them notarized through an approved DFI provider, such as Notarize or NotaryCam.
The emergency rule links to other guidance, which notes that “title companies and others performing real-estate transactions can also use Pavaso or Nexsys, which provide remote online notarization platforms for real-estate transactions.”
“DocVerify also offers remote notarization services for businesses and others. Before using a remote online notarization provider for any land transaction, check with your title company to make sure it is approved for insurance purposes,” the guidance says.
That guidance also notes that Wisconsin notaries can obtain the training necessary to perform remote notarizations, and once trained with an approved provider, are authorized to begin performing remote online notarizations using the provider’s platform.
However, there is indications that at least one approved provider, Notarize, is not currently providing the training to Wisconsin notaries. That may change.
Estate Planning Documents CANNOT be Notarized Remotely
Although many Wisconsin legal documents can now be notarized remotely, the emergency rule notes that remote notarizations must comply with Act 125, which does not apply to transactions to the extent governed by any of the following:
· Any law governing the creation and execution of wills, codicils, or testamentary trusts.
· Any law governing the creation and execution of living trusts or trust amendments for personal use, not including a transaction, as defined in s. 137.11 (15).
· Any law governing the creation and execution of powers of attorney, not including a transaction, as defined in s. 137.11 (15).
· Any law governing the creation and execution of marital property agreements.
· Any law governing the creation and execution of powers of attorney for health care, declarations to physicians (living wills), and authorizations for use and disclosure of protected health care information.
Again, remote notarizations cannot be performed for estate planning documents, including wills, trusts, and powers of attorney. The RPPT section supported Act 125’s passage with the exclusions noted.
Catherine Priebe, chair of the State Bar’s Real Property, Probate and Trust Law (RPPT) Section, said the exclusion for estate planning documents was intentional to allow for further assessment.
“It was the drafting committee's intent to explicitly exclude estate planning documents from the online remote notarization statute for a variety of reasons, including the need for additional time to evaluate the impact of changing technology on the estate planning practice area, such as the Uniform Electronic Wills Act, remote electronic witnessing, and similar developments,” she said. “Wisconsin law may evolve, but current law does not allow for remote online notarization of estate planning documents.”
Notarization is different than witnessing a will. For instance, wills can be self-proved if notarized. A will does not need to be notarized to be valid, but it must be signed by at least two witnesses in order to be validly executed. Wills and other estate planning documents cannot be self-proved through remote notarizations, as noted.
In light of the pandemic and social distancing recommendations, the State Bar is receiving numerous questions about whether a will or other estate planning document can be witnessed remotely, under Wis. Stat. section 853.03 (execution of wills).
Again, witnessing is different than notarization. Under section 853.03, in order to be validly executed, every will must be in writing and executed with all of the following:
(1) It must be signed by the testator, by the testator with the assistance of another person with the testator’s consent or in the testator’s name by another person at the testator’s direction and in the testator’s conscious presence.
(2) (am) It must be signed by at least 2 witnesses who signed within a reasonable time after any of the following:
1. The signing of the will as provided under sub. (1), in the conscious presence of the witness.
2. The testator’s implicit or explicit acknowledgement of the testator’s signature on the will, in the conscious presence of the witness.
3. The testator’s implicit or explicit acknowledgement of the will, in the conscious presence of the witness.
(bm) The 2 witnesses required under par. (am) may observe the signing or acknowledgement under par. (am) 1. to 3. at different times.
Again, online notarization – which does not apply to estate planning documents – is different than witnessing the signing of a will through two disinterested witnesses.
It is unclear under Wisconsin law whether a witness can be in the “conscious presence” of a testator if they are watching the testator sign through videoconferencing.
The term “conscious presence” is not defined and witnesses typically witness in-person to avoid any argument that the will was not properly witnessed.
Thus, if a will was witnessed through video conferencing and subsequently signed “within a reasonable time” after the testator signs the will, one could argue that it should be upheld as valid given the extraordinary times.
But one could also argue that the document is invalid if a court finds that “conscious presence” does not include a digital representation of the testator executing a will rather than the witness experiencing such an act directly through his or her own senses.
Videoconferencing may also make it more difficult for witnesses or a court to determine whether the testator had capacity to execute the will or was subject to undue influence.
While it is still generally the best practice, it is important to note that not all estate planning documents are required to be witnessed. For example, the Wisconsin Trust Code does not require that a trust be witnessed for it to be validly created.
In addition, the Wisconsin Marital Property Act only requires that a marital property agreement be executed by both spouses. Keep in mind, of course, that the use of certain estate planning documents without witnesses (and often notarization) may result in their rejection by certain financial institutions and may prohibit their use in real estate transactions.
Wisconsin practitioners are urged to consider the risks of proceeding with remote witnessing of estate planning documents, after consulting with their clients, before going that route because there is no definitive answer regarding the validity of the documents witnessed in this fashion under current Wisconsin law.
Being that the witnessing requirements are statutory in nature, legislative action would be required. In the meantime, caution is advised.
Priebe said lawyers should keep these issues in mind when coordinating the execution of estate planning documents during these challenging times.