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How To Update And Witness Your Will In An Era Of Social Distancing

Author: Andrew M. Friedman, Jose L. Espejo Date: 04/22/2020

Categories: Covid-19 News and Resources, Estate Planning and Administration

Conceptual image of a man signing a last will and testament document.A Will is valid only if you – as the maker of the Will – sign it in the physical presence of two witnesses. Whether you’re in DC, Maryland, or Virginia – this law is basically the same. The purpose of this rule is to verify that you actually signed the Will, and to prove you weren’t under duress when you signed it.

How can you arrange for two people to safely witness your Will signing during the COVID-19 pandemic? Stay-at-home orders have been issued. Social distancing guidelines have been implemented. These traditional rules of valid Will signings are not exactly “social distancing-friendly.” 

Our elected officials are attempting to respond to this new reality by easing some of these witnessing rules – at least temporarily. The attorneys at McMillan Metro are closely monitoring these changes in real-time. We’ve been busy meeting with clients over the phone and through video conferencing to make and update Wills and other estate planning documents. We want to make sure you have the most seamless signing experience possible.

Maryland allows remote witnessing for Wills, powers of attorney, and advance directives.

D.C. will soon allow remote witnessing for Wills. *

Both D.C. and Maryland have carved out a new option for remote witnessing for Wills. Witnesses can now “electronically” witness a signing if they have the ability to observe and communicate with the maker of the Will to the same extent as if the witnesses were physically present. This presumably means witnesses could validly “witness” through FaceTime or some other video chat technology.

This rule is in effect for so long as each jurisdiction is under a state of emergency. 

Importantly, both D.C. and Maryland contemplate having an attorney supervise the electronic signing process to ensure all of the formalities are being followed.

Maryland authorized remote witnessing on April 10th, through an executive order by the Governor. https://governor.maryland.gov/wp-content/uploads/2020/04/Remote-Witnessing-4.10.20.pdf

* While the Council of the District of Columbia approved remote witnessing through a bill on April 6th, the bill still needs the Mayor’s signature for it to become effective. We expect that approval to happen imminently. http://lims.dccouncil.us/Download/44544/B23-0734-Introduction.pdf

Neither D.C. nor Maryland requires a notary to make a valid Will.

Virginia does not currently allow remote witnessing of Wills.

Virginia has, so far, remained silent in terms of remote witnessing during this pandemic. In addition – unlike D.C. and Maryland – it is crucial to have your Virginia Will notarized. Virginia does allow remote notarization. 

In Summary

We are monitoring additional estate planning measures as they are enacted. This area of law is changing by the day.

Keep in mind there are several other requirements for witnesses to properly witness your Will signing. For example, it is important that your witnesses not be a beneficiary or legatee under your Will. 

Please feel free to contact Jose L. Espejo at jespejo@mcmillanmetro.com or Andrew M. Friedman at afriedman@mcmillanmetro.com with any questions about your estate planning needs during the COVID-19 pandemic.