Keeping Estate Planning ‘In-House’: New Illinois Law aims to make At-Home Estate Planning ‘virtually’ the same
As COVID-19 gripped the globe, it brought a crush of uncertainty –essentially overnight — to the legal community and economy. Some of you reading this have probably been working remotely since March with no plans to return to the office until next year. To say these are trying times would certainly not be an understatement. The constant question inside our heads is how to persevere to drive doubt, fear and frustration from our minds as well as from the minds of clients, colleagues, friends and family.
These uncomfortable thoughts often lead to uncomfortable conversations. However, as an attorney who protects assets from legal battles, taxes and long court battles with wills, trusts and powers of attorney, I help facilitate uncomfortable conversations with clients and their families, business partners and beneficiaries all the time.
The pandemic has reinforced our firm’s mantra that having the estate planning discussion now is better than not having it at all. In fact, it is one of the reasons why we have drafted free estate plans for first responders during the pandemic. Who has time to find an attorney to help paper guardians, beneficiaries, titling of assets when your life is at risk for the community’s collective well-being and, by definition, you need a plan? Our firm’s ability to document estate plans not only for first responders but for all our clients, new and old, was possible in part because Gov. Pritzker signed Executive Order 2020-14 (“the Order”). The Order allowed notary public and remote witnessing of documents just days into shelter-in-place.
While the Order did not excuse provision of the Electronic Commerce Security Act, 5 ILCS 175/5-102(c), which bars electronic signatures on certain documents, the Order’s highlights included:
• Any witnessing required by Illinois law may be completed remotely via two-way audio video technology per the Order’s guidelines.
• The requirement that a person must “appear before” a notary public is satisfied if the notary public conducts the remote notarization via twoway audio video technology provided the notary public is located in Illinois while executing her notarial act.
•The witness and signatory must attest to be physically located in Illinois during the two-way audio-video communication.
•The two-way audio-video recording must be kept for three years by the person signing the document or someone the person signing the document appoints.
The Order allowed a lot of business to continue somewhat seamlessly while the pandemic continued to cast waves of uncertainty through the economy. Business owners, entrepreneurs, individuals and families were able to move forward to paper deals, sign contracts, and handle personal matters with the necessary documents for which the pandemic did not excuse the need for a notarized signature. Thus, it came as no surprise that in July, this critically important Order was signed into law.
The legal community has raised some concerns with the new law. One concern, as often is the case with technology, is how to safeguard against fraud.
Another is accessibility to the technology necessary to comply with the law.
There are privacy issues as well. Does the law’s requirement that a witness receive a copy of the entire signed document overlook the fact that often there is sensitive and private information contained in documents that require a witness and notary? A person signing a will or trust may prefer that a witness not be privy to the details contained in these sorts of documents.
To be sure, the engaged bar and trade associations in Illinois will be able to help identify and resolve gaps in the law. But why should you care about this law? It benefits you. How? From the comfort of your home, you can speak to an attorney to get an estate planner have your estate plan reviewed if you have three things: 1. Access to video conference technology, such as Cisco WebEx, Skype, FaceTime and Zoom 2. The ability to scan documents 3. An email address.
If you do so, there will be no crush of uncertainty for your family and friends if you find yourself in a hospital bed, 6 feet under or stuck on a cruise ship somewhere.