Remote Estate Planning and Notarization: Updated

Leech Tishman has received multiple inquiries regarding the ability to draft and execute Wills, Trusts, and Powers of Attorney remotely as a result of the Shelter-in-Place order affecting seven Pennsylvania counties as well as the public health advisories to limit as much in-person contact as possible. The firm is operating with full functionality and our attorneys remain able to draft, review, revise, and deliver electronically or by mail all estate planning documents for Pennsylvania residents. In addition, Leech Tishman can remotely supervise the execution of all documents with the exception of Durable Powers of Attorney and real estate instruments, both of which require in-person notarization under Pennsylvania law.

Two independent bills have been introduced in the Pennsylvania legislature which would allow remote notarization in response to the coronavirus crisis. Senators Doug Mastriano and Lynda Culver introduced Senate Bill 1097 which has passed the Senate and was referred to the Senate State Government Committee on March 23, 2020. Also on March 23, Representative Mark Keller has introduced an amendment to House Bill 1564 to allow for notarization with the notary officiating by video. The House Bill passed quickly on March 25 with a vote of 198-0 and now awaits action in the Senate.

Leech Tishman is tracking both pieces of legislation and will provide an update upon enactment of either. Both of these bills would allow fully remote execution of estate planning, real estate, and other legal documents.

Update as of April 13, 2020

To demonstrate urgency in light of the current crisis, the Senate could have approved House Bill 1564, unanimously passed by the House. Had it done so, the Governor would have enacted remote notarization law last week. However, the Senate has not meaningfully advanced the House Bill 1564. That bill was referred to the Local Government Committee where it has been under consideration with no action since April 3.

Instead, the Senate has taken a plodding approach, advancing Senate Bill 1097, which still requires passage by the House. This effectively nullified the House’s swift and decisive approach with Bill 1564. The Senate Bill was reported as amended from the State Government Committee on April 6. Also on April 6, the Senate bill received first consideration. On April 7, it received second consideration and the Firm was hopeful it would soon be brought to vote. Later that day, Senate Bill 1097 was referred back to committee, this time to the Appropriations committee. Since being referred, the matter has sat idle.

In the meantime, on April 2, 2020, the Department of State issued a notice that it had requested and received a “temporary limited suspension” of the physical presence requirement (while Pennsylvania previously had electronic notarization, physical presence remained a requirement). Presumably, this authority was granted under the emergency powers of the governor. However, this is not a panacea.

The Department of State’s waiver appears to be limited to three types of estate planning documents requiring notarization: Self-proving Wills, Powers of Attorney, and Temporary Guardianship. For now, all other notarial acts retain the physical presence requirement.

The original version of this article was published on March 27, 2020, with an update published on April 13, 2020.

Should you have any questions regarding your estate planning or remote execution of legal documents, please contact Matt Rak, Dave DelFiandra, or another member of the Leech Tishman Estates & Trusts Practice Group.

Matthew Rak is a Partner with Leech Tishman and a member of the Estates & Trusts Practice Group and Taxation and Energy Groups. He also is Chair of the Nonprofit Organizations Group. Matt is based in the Pittsburgh office and can be reached at 412.261.1600 or mrak@leechtishman.com.

David J. DelFiandra is a Partner with Leech Tishman and Chair of the Estates & Trusts Practice Group. He is also a member of the Taxation Practice Group and the Nonprofit Organizations Group. Dave is based in the Pittsburgh office and can be reached at 412.261.1600 or ddelfiandra@leechtishman.com. 

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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.