Estate planning has changed dramatically during the Covid-19 crisis.  The majority of our clients are older individuals who are at a higher risk of being infected with the virus and who have an elevated risk of serious complications from the virus.  Many of our clients are concerned about contracting the virus and have reached out to us about their desires to update their estate planning documents as soon and safely as possible.last will and testament covid-19

The challenge facing all estate planning attorneys is how to safely perform estate planning for vulnerable clients in the Covid-19 environment.  From the middle of March to the date of this blog post, our Firm has ceased in person meetings with clients to protect both the client and our staff from contracting the virus.  We have been using Face Time, Zoom or telephone calls to meet with clients to discuss estate planning.  Governor Reynolds issued an Emergency Proclamation which allows for Wills to be witnessed without witnesses being physically present if the testator and the witnesses are present in the manner in which the witnesses can see and hear the acts by electronic means, such as video conference, Skype, Face Time, Zoom, or other means, whether or not recorded.  Said Proclamation has been extended monthly by the Governor and is currently scheduled to expire at midnight on July 25, 2020.

Pre Covid-19, it was general practice to have the testator execute a self-proving affidavit which required a notary, and which was attached to the Will.  Such document allows the Will to be admitted to probate without locating one of the witnesses to the Will to sign a Testimony of Witness.  To avoid having to meet personally with a client to notarize such document, some attorneys are having one witness to the Will sign a Testimony of Witness document at the same time they witness the Will signing.  The Governor’s proclamation can also be used to witness a Durable Power of Attorney for Health Care and Living Will.  A Durable Power of Attorney for Health Care and Living Will can also be notarized.  The proclamation does not work for Iowa Statutory Powers of Attorney (Financial Powers of Attorney), which must be notarized, or for deeds to transfer real estate to a revocable trust, which also need to be notarized.

The Governor also issued a Proclamation which temporarily suspended the personal appearance requirements of a Notarial Act only to the extent that said Act complies with Section 6 of 2019 Senate File 475 which passed in 2019 and which provides for remote notarial acts.  Said Act was scheduled to become effective on July 1, 2020.  The Governor’s Proclamation speed up the effective date of the new Act.  Under the new Act, a person performing remote notarization is required to use a software service designed for such purpose which includes the identity-proofing technology, the e-signing capability and storage of notarial act recordings.  As a practical matter, many lawyers have found that the remote notarization is complex to use and expensive.

To get around the complexity and cost of remote notarization, many attorneys are coming up with work-arounds.  Some attorneys are having clients remain in their cars and sign documents which need to be notarized and then placing the documents outside their car.  The attorney then picks up the documents and notarizes them back in the office.  Another option is to have a client sign documents outside the door of the law firm while the attorney witnesses through a glass door or an open door.  The client then passes the documents under the door and the attorney notarizes the documents.  To protect the safety of the client and the attorney, both parties should be wearing masks and remain at least six (6) feet apart.

The Covid-19 crisis will be with us for a while.  Until the crisis is over, our office will take all appropriate steps to insure the safety of clients.  Stay safe and put on a mask when you go out in the public.  We all need to work together to defeat the virus.