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Practicing in the Age of COVID-19

With the events surrounding the spread of COVID-19 (coronavirus), we are facing a truly unprecedented situation here and around the globe.  We are all faced with uncertainty both personally and professionally.  The same is true for our clients, many of whom are at the highest risk, who are looking to their legal counsel to help them navigate legal issues associated with the potential ramifications of COVID-19.  

The MSBA Probate and Trust Section recognizes that the restrictions on social interactions are complicating our ability to prepare and properly execute estate planning documents for our clients while preserving the health and safety of our clients, ourselves and our community.  Although every situation will need to be carefully evaluated, the Section thought it might be helpful to collect a few statutory resources in one place as a brief reference guide to assist members in navigating individual legal situations.  

Last Will and Testament

  • What is Required under Minnesota Statutes to Execute a Valid Last Will and Testament

WHO MAY MAKE A WILL.

Minn Stat. §524.2-501

EXECUTION; WITNESSED WILLS.

Minn Stat. § 524.2-502

SELF-PROVED WILL.

Minn Stat. § 524.2-504

  • What is Not Required Under Minnesota Statutes to Execute a Valid Last Will and Testament (but may require additional action if the Will is probated formally) – not necessarily best practice:

    o  Self-Proving Affidavit/Notarization
    o  Unrelated/Disinterested Witnesses

    INFORMAL PROBATE; PROOF ANDFINDINGS REQUIRED

    Minn Stat.§524.3-303(c)

    FORMAL TESTACY PROCEEDINGS; UNCONTESTED CASES; HEARINGS AND PROOF

    Minn Stat.§524.3-405

    FORMAL TESTACY PROCEEDINGS; CONTESTED CASES; TESTIMONY OF ATTESTING WITNESSES

    Minn Stat.§524.3-406

    WHO MAY WITNESS.

    Minn Stat. §524.2-505

  • What Does Not Constitute Valid Execution under Minnesota Statutes:

o  Witnessing via Technology (e.g., video conference)
o  Electronic wills
o  Substantial compliance with the statutory requirements
o  Holographic wills

Trust

  • What is Required under Minnesota Statutes to Execute a Trust: 

METHODS OF CREATING TRUST.

Minn Stat. § 501C.0401

REQUIREMENTS FOR CREATION.

Minn Stat. § 501C.0402

EVIDENCE OF ORAL TRUST.

Minn Stat. § 501C.0407

TRUST FOR CARE OF ANIMAL.

Minn Stat. § 501C.0408

  • What is Not Required under Minnesota Statutes to Execute a Valid Trust – not necessarily best practice:

o  A writing
o  Witnesses (related or unrelated)
o  Notarization

  • Amendments to a revocable trust must comply with any requirements set forth in the trust document.  Many trust agreements require a signed instrument delivered to the trustee and may require the formalities required for valid execution of the original trust agreement.
  • A certificate of trust may be able to be used later if a trust document lacks notarization.    

Minnesota Statutory Notary Requirements

Effective January 1, 2019, the Minnesota Legislature enacted remote online notarization pursuant to Minnesota Statutes 358 and 359, allowing a notary public who is physically located in this state to perform a remote online notarial act as defined in Minnesota Statutes 358.645.  Compliance with the statutory requirements is required to be a valid notarial act.  

SHORT TITLE.

Minn Stat.§358.51

DEFINITIONS.

Minn Stat. §358.52

APPLICABILITY.

Minn Stat. §358.53

AUTHORITY TO PERFORM NOTARIAL ACT.

Minn Stat. §358.54

REQUIREMENTS FOR CERTAIN NOTARIAL ACTS.

Minn Stat. §358.55

PERSONAL APPEARANCE REQUIRED.

Minn Stat. §358.56

IDENTIFICATION OF INDIVIDUAL.

Minn Stat. §358.57

AUTHORITY TO REFUSE TO PERFORM NOTARIAL ACT.

Minn Stat. §358.58

REMOTE ONLINE NOTARY PUBLIC.

Minn Stat. §358.645

RECORDING ELECTRONIC DOCUMENTS IN TANGIBLE FORM.

Minn Stat. §358.646

CERTIFICATE OF NOTARIAL ACT.

Minn Stat. §358.65

SHORT FORM CERTIFICATES.

Minn Stat. §358.66

OFFICIAL STAMP.

Minn Stat. §358.67

STAMPING DEVICE SECURITY.

Minn Stat. §358.68

PERFORMANCE OF NOTARIAL ACT ON ELECTRONIC RECORD.

Minn Stat. §358.69

PROHIBITED ACTS.

Minn Stat. §358.72

VALIDITY OF NOTARIAL ACTS.

Minn Stat. §358.73

NOTARY PUBLIC COMMISSION IN EFFECT.

Minn Stat. §358.74

SAVINGS CLAUSE.

Minn Stat. §358.75

RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.

Minn Stat. §358.76

As always, be sure to comply with all requirements if notarizing via electronic device, including separate registration with the secretary of state and communication technology standards.  There is more involved than simply participating in a video conference.  The following link, posted by a member on the Estate Community (https://my.mnbar.org/home),may provide additional guidance:  https://www.nationalnotary.org/notary-bulletin/blog/2018/06/remote-notarization-what-you-need-to-know

Requirements to Execute a Durable Power of Attorney under Minnesota Statutes

AUTHORIZATION.

Minn Stat. §523.01

COMMON LAW, PREEXISTING AND FOREIGN POWERS OF ATTORNEY.

Minn Stat. §523.02

DEFINITIONS.

Minn Stat. §523.03

PRESUMPTION OF VALID EXECUTION.

Minn Stat. §523.04

RECORDING.

Minn Stat. §523.05

DURABLE POWER OF ATTORNEY.

Minn Stat. §523.07

EXPIRATION DATE IN A POWER OF ATTORNEY.

Minn Stat. §523.075

Requirements to Execute Health Care Directive under Minnesota Statutes

DEFINITIONS.

 

Minn Stat. §145C.01

HEALTH CARE DIRECTIVE.

Minn Stat. §145C.02

REQUIREMENTS.

Minn Stat. §145C.03

EXECUTED IN ANOTHER STATE.

Minn Stat. §145C.04

SUGGESTED FORM; PROVISIONS THAT MAY BE INCLUDED.

Minn Stat. §145C.05

WHEN EFFECTIVE.

Minn Stat. §145C.06


These statutory references certainly are not exhaustive, and each situation will need to be evaluated carefully to ensure that estate planning documents are properly executed while still protecting yourself, your colleagues, your clients and the public from the risks associated with COVID-19.  
Other options to consider include executing documents outdoors, maintaining physical separation of 6 feet, providing signature lines on separate sheets of paper that don’t need to be exchanged, and not sharing pens.  

Feel free also to use the resources made available to you by the MSBA.  As a member of the Probate and Trust Section, you are also welcome to participate in the Probate and Trust Community on https://my.mnbar.org/home.  There is a discussion page labeled “Estate Community” where you can communicate with other members during this challenging time.  

The Section Council will continue to evaluate whether other resources should be made available for members’ assistance or if other solutions may be available to protect the integrity of the estate planning documents being signed during this difficult time.  

On behalf of the Probate and Trust Section,
Jolene M. Cutshall, Chair