For many families, COVID-19 has brought estate planning to the top of the priority list. Unfortunately, most law offices are closed or limiting their availability due to stay-at-home orders or other state restrictions. Estate planning attorneys are still able to complete meetings by phone and can send clients documents by email or mail for signature. One of the most frequently asked questions during this time is “can I sign my will during quarantine?”
In Virginia, a holographic will is valid and enforceable. A holographic will is completely in the testator’s handwriting and signed by the testator. A typewritten will must be signed or acknowledged by the testator in the presence of two witnesses. A will does not need to be notarized in Virginia, but frequently will include a self-proving affidavit to notarize the signatures of the testator and witnesses. Including a self-proving affidavit with a will makes it easier to establish the validity of the will.
Some jurisdictions require that witnesses be “disinterested” – that they not be family members or beneficiaries under the will. In Virginia, there is no requirement that witnesses of a will be disinterested. This means that family members who are over 18 may act as witnesses to your will.
Typically, trust agreements are signed and notarized by the grantor, but they do not require a notary in order to be valid. Rather, trust agreements only require the signature of the grantor. A certification of trust must include the signature of the trustee. For those with revocable living trusts, the grantor may also be the trustee during their life.
If the trust or certification of trust is to be recorded with land records, it will need to be notarized.
A durable power of attorney will be presumed to be genuine if signed and notarized by the principal. If the power of attorney is to be filed with land records, it must either be notarized or proved by two witnesses.
Advance medical directives must be signed before two witnesses in Virginia. While it is not required that the witnesses be disinterested, our office generally recommends using disinterested witnesses where possible. This helps prevent any claim of undue influence later.
The requirement for witnesses to be “in the presence” of the testator does not have a specific distance requirement. In order to be in someone’s presence, they could be across the room or across an outdoor area from one another. So long as the witness observes the signer executing the document and sees that the signer is not under any duress or impairment, they can act as a witness.
Since witnesses do not have to be “disinterested,” family members who are under quarantine in the same household are able to act as witnesses for one another.
A trust agreement should be signed in the presence of a notary in case it needs to be filed with land records in the future. In that case, use of a mobile notary who can remain at a safe distance or even in the car can be helpful to finalize trust documents.
A durable power of attorney only needs to be signed by the principal to be effective, however, it’s highly recommended that it be notarized. Similar to the trust agreement, use of a mobile notary may be useful to ensure the power of attorney is not challenged later.
Melone Hatley is a family and estate firm serving Virginia Beach and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service. Through our high standards, we strive to be a trusted resource to our clients.
We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives. For more information about estate planning, contact our Reston office today at 703.995.9900 or Virginia Beach at 757.296.0580 or visit our website: www.MeloneLawPC.com.