On April 9, 2020, Governor Bill Lee issued Executive Order No. 26. It temporarily addresses a dilemma that estate planners and other attorneys have been struggling with ever since the state of Tennessee went into lockdown in response to the COVID-19 virus. How do you execute wills, powers of attorney, and other legal documents in a time of social distancing?

For estate planning documents, the participation of a notary and/or witnesses is advisable, if not required.

A last will and testament must generally be executed by the testator in the physical presence of two witnesses who have no financial interest in the estate (preferably). The witnesses in turn must sign the will in the presence of each other and the testator. See T.C.A. § 32-1-104. However, if the signature and all the “material provisions” of the document are in the testator’s handwriting, no witnesses are needed at the time of execution, so long as the testator’s handwriting can later be proved by two witnesses. T.C.A. § 32-1-105.  Contrary to popular belief, a notary is NOT required for either a typed or handwritten (“holographic”) will.

A health care power of attorney must be signed by the principal in the presence of two witnesses OR a notary. If witnesses are used, at least one of them (a) cannot be related to the principal by blood, marriage, or adoption and (b) must not be entitled to any portion of the principal’s estate upon the principal’s death. See T.C.A. § 34-6-203(a) or T.C.A. § 68-11-1803(b).

The statute governing general (a.k.a financial) powers of attorney does not specify the means of execution. It simply says:

A durable power of attorney is a power of attorney by which a principal designates another as the principal’s attorney in fact in writing and the writing contains the words “This power of attorney shall not be affected by subsequent disability or incapacity of the principal,” or “This power of attorney shall become effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable, notwithstanding the principal’s subsequent disability or incapacity.

T.C.A. § 34-6-102. As a practical matter, however, a general power of attorney cannot be recorded with the Register’s Office unless unless it is notarized.

Finally, there are also no explicit execution requirements for a trust in Tennessee. The comments to T.C.A. § 35-15-402 simply say “neither a revocable or irrevocable trust (pour-over or non-pour-over), even one containing testamentary dispositions, need be made with the formalities of a will.” See also T.C.A. § 35-15-601. Nonetheless, trusts are normally notarized and sometimes witnessed.

For a limited time, Executive Order No. 26 eliminates the need for notaries and witnesses to be physically present. It authorizes “remote notarization” and “remote witnessing” of legal documents, including trusts, wills, living wills, health care powers of attorney, and general powers of attorney, if the following conditions are satisfied:

  • The signing, witnessing, and notarization must occur via real-time audio and visual communication, such as Skype, Facetime, Zoom, and Webex;
  • The parties must be able to see and hear each other simultaneously;
  • All the parties must be located in the state of Tennessee;
  • The witnesses and/or notary must verify the identity of the signatory at the time of the signing and by means of video-conferencing;
  • The document being executed must be identified by the signatory and witnesses (if any) during the video-conference;
  • The signing must be captured on video (but not necessarily recorded) at “sufficiently close” range so as to allow the witnesses and/or notary to observe the act;
  • The document must include a statement that it was executed in compliance with the Executive Order; and
  • The execution, witnessing, or notarization must be memorialized either by (1) counterparts, in which each party executes separate pages, which are ultimately collated into a single document; or (2) the document is signed by the testator/principal/trustor, and then is circulated among the other parties for their signatures within ten (10) calendar days.

The Executive Order is to be liberally construed. It is effective from April 9, 2020, until May 18, 2020.

Posted by Joel D. Roettger, JD, LLM, EPLS