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Warning: Update Estate Planning Documents Now as Remote Witnessing May End September 30th
On Friday, August 28, 2020, Governor Lee issued Executive Order No. 61, extending the ability to remotely execute documents, particularly estate planning documents, via Zoom or other similar video conferencing technologies to allow for the witnesses and notary to sign remotely. The current Tennessee Online Notary Act did not allow for remote witnessing, necessitating this Executive Order due to the issues with having two witnesses, a notary, and a client in a confined indoor area executing documents during the current pandemic, especially when many of those executing these documents may be people at higher risk due to age or certain medical conditions.
Executive Order No. 61 is an extension of previous orders 26, 37, and 52 which began allowing such remote notarizations and witnessing starting on April 9, 2020. However, there is one key difference with Executive Order No. 61 in that it may not be further extended. The second paragraph of Executive Order 61 states that the extension is necessary to allow vulnerable populations to avoid in-person contact, but it also states that people should make “preparations to implement best practices for a safe return to in-person transactions beginning October 1, 2020.” Since the previous Orders did not include any clauses regarding a return to in-person transactions, Executive Order No. 61 seems to imply that this Order may be the last, and that in-person transactions may then be required for executing documents requiring witnesses. The Order does not provide any guidance as to what best practices should be adopted.
Therefore, anyone considering executing new or revised estate planning documents is advised to do so well before this Order expires on September 30, 2020, since it may become much more difficult to safely execute documents in October and thereafter.