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
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:
- 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.
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
Requirements to Execute Health Care Directive under Minnesota Statutes
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