Remote Signatures for Estate Planning, Deeds, and Other Transactions

Last night (April 8, 2020), Governor Whitmer signed Executive Order 2020–41 allowing the use of electronic signatures, remote notarizations, and remote witnessing. Executive Order 2020-41 is effective immediately and continues through May 6, 2020.

Executive Order 2020–41 will have a significant impact on the ability to remotely execute estate planning documents and conduct other transactions without the necessity of person-to-person contact. With Governor Whitmer’s prior “stay at home” order (which is expected to be extended) and attorneys not being deemed “essential”, the ability to execute estate planning documents and conduct certain other transactions (e.g., real estate and loan documents) was severely hampered. This new Executive Order will now allow estate planning and other transactions to go forward under the stay at home order.

Witnessed Documents:

For any document under Michigan law that requires in-person witnesses (e.g., wills, durable powers of attorney, and health care powers of attorney), the “use of two-way real-time audiovisual technology” (in other words, a video conference through Zoom, Skype, FaceTime, etc.) may be used if all of the following conditions are met:

• The video conference must allow direct, contemporaneous interaction by sight and sound between the person signing the document (the “signatory”) and the witness(es).
• The interaction between the signatory and the witness(es) must be recorded and preserved for a period of at least three years (or longer if required by another law).
• The signatory must represent that he/she is physically situated in Michigan, or that the signatory is physically located outside of Michigan and that either of the following apply:
  • The document is intended for filing with or relates to a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of this state; or
  • The document involves property located in the territorial jurisdiction of this state or a transaction substantially connected to this state.
• The signatory must affirmatively state during their interaction with the witness(es) on the two-way real-time audiovisual technology what document they are executing.
• Each title page and signature page of the document being witnessed must be shown to the witness(es) on the video conference in a manner clearly legible to the witness(es), and every page of the document must be numbered to reflect both the page number of the document and the total number of pages of the document.
• Each act of signing the document must be captured sufficiently up close on the video conference for the witness(es) to observe.
• The entire signed document must be transmitted by fax, mail, or electronic means directly to the witness(es) within 24 hours after it is executed.
• Within 24 hours of receipt, the witness(es) must sign the document and return the signed copy of the document to the signatory by fax, mail, or electronic means.

Notarized Documents:

Similarly, any document under Michigan law that requires a notary (e.g., deeds, some real estate/loan documents, etc.), a video conference can also be used under Executive Order 2020-41. For the remote notarization of a document, the process is identical to the above requirements for remote witnessing and must also meet these additional requirements:

• The video recording must be made and retained as a notarial record in accordance with sections 26b(7) to 26b(9) of the Michigan Law on Notarial Acts (MCL 55.286b(7) to 55.286b(9)).
• The signatory, if not personally known to the notary, must present satisfactory evidence of identity (e.g., a valid state-issued photo identification) to the notary during the video conference, not merely transmit it prior to or after the transaction.
• If an individual is physically located outside of the geographic boundaries of Michigan (and meets the other requirements listed above), the notary must have no actual knowledge that the individual’s act of making the statement or signing the document is prohibited by the laws of the jurisdiction in which the individual is physically located.
• The signatures must be done so any subsequent change or modification of the remote online notarial act would be evident (i.e., essentially tamper proof).
• The signed document must be transmitted by the signatory to the notary the same day it was signed.
• When the document is received, the notary may notarize the document, but the official date and time of the notarization shall be the date and time when the notary witnessed the signature during the video conference.

Visits:

A guardian, guardian ad litem, or visitor may satisfy any requirement concerning a visit with a person—including but not limited to a visit in the physical presence of a person under the Estates and Protected Individuals Code—through a video conference. The Executive Order does not mention any recording or other requirements for such a visit. Despite the lack of guidance, it would seem prudent to record any such visit where the contents of the communication could ever become an issue of dispute.

Validity:

Finally, and importantly, financial institutions and registers of deeds cannot refuse documents on the grounds that it does not bear the original signature of a person, witness, or notary, if the notary before whom it was executed certifies that the tangible copy is an accurate copy of the electronic record.

Contact HaasCaywood: 

If you have additional questions about remote signing or want to discuss estate planning, real estate, or other transactions, please contact us to schedule a telephonic or video conference with one of our attorneys.  

Other HaasCaywood PC COVID-19 Related Blogs

• Remote Notarization and Witnessing for Estate Planning, Real Estate Closings, and Other Transactions
• “Paycheck Protection Program” Loans for Small Businesses
• Michigan Employer Guidelines under Governor Whitmer’s “Stay at Home” Order
• Expanding Paid Family and Medical Leave Due to COVID-19: What Employers and Employees Need to Know
• Disaster Loan Assistance from the U.S. Small Business Administration
• Local Court Closures Due to COVID-19

Prepared on April 9, 2020 by Michael Caywood