Executing Wills Remotely During COVID-19

by Mandy Hicks

During these uncertain times, many people are considering preparing for the worst and putting their affairs in order. This is a perfectly natural response to the advancing COVID-19 epidemic. However, executing a will can present challenges when we are all in self-isolation and social distancing.

Under Kentucky law, there are two ways to execute a valid will. The first is a holographic will, which is entirely written by the testator’s (the person making the will) own hand. This means it must be signed and entirely handwritten – any amount of typewritten text will invalidate the will. While this method is seemingly simple and would appear to address any concerns during this current COVID-19 crisis, it is not without its drawbacks. A holographic will needs to be proven in court by at least two credible witnesses who are very familiar with your handwriting that the handwriting is indeed your handwriting. Additionally those witnesses should be disinterested – meaning they will not inherit under the will – else they could risk losing the inheritance you wanted them to have. It’s certainly a valid, legal option for you to utilize, especially during these uncertain times, but carefully consider and weigh the drawbacks.

The second way to execute a will is to formally execute one in the presences of witnesses. A formally executed will must be signed in the presence of at least two witnesses, and those witnesses must also sign the will in the presence of the testator and each other. In addition, formally executed wills can be made self-proving (meaning, unlike holographic wills, the witnesses do not need to prove the will in court) by having the testator and witnesses sign in the presence of a notary. This means that at least three, but usually four people must be involved in the process of signing a will, be present together, and able to see one another signing the document. In addition, again, the witnesses should be disinterested, eliminating most members of an immediate household as a qualified witness. A difficult obstacle to overcome in these times.

Recognizing this issue, on March 30, 2020, the Governor signed into law Senate Bill 150, which allows remote execution of formally executed wills. Under S.B. 150, individuals who are not actually in the same physical location will be considered in each other’s presence if they can communicate via real-time video conferencing to the same extent as if they were physically in the same location. This legislation does not allow electronic wills, where the document is located on computer and the testator and witnesses sign through typewriting or clicking a box. The will must still be physically signed by each individual, but the differently signed pages when put together will be legally treated as the same document. In addition, the Attorney General has issued guidance allowing notaries public to act remotely through real-time video conferencing.

The enactment of S.B. 150 removes a hurdle to executing formal wills and will help provide many people peace of mind in these uncertain times. However, remote execution is not a solution for everyone. If you have any questions about whether remote execution may be right for you and your family, please call the ELPO Law office at 270-781-6500.