Maryland Governor Larry Hogan has passed emergency Executive Order Number 20-04-10-01, which facilitates the execution of estate planning documents by allowing remote witnessing through video-conferencing. This Executive Order is a follow up to Executive Order 20-03-30-04 which authorized remote notarization of estate planning documents.

This temporary legislation suspends the traditional in-person witnessing requirement for Wills, Advance Medical Directives, and Financial Powers of Attorney, subject to the following requirements:

• The signer must be a Maryland resident or physically located in Maryland at the time of signing;
• Each remote witness must be a Maryland resident, physically located in the United States;
• The signer, witnesses, and a Maryland licensed-attorney (who cannot serve as a witness) must be in the physical presence of one another or able to see and communicate with one another electronically;
• The signer and witnesses must physically or electronically sign one or more counterparts of the same document at that time; and
• After execution of the documents, the supervising attorney must prepare a certified copy of each document (which shall be deemed the original), containing each signature page of the signer and witnesses, and prepare a certification of compliance with the above requirements.

The Executive Order does not extend remote witnessing to Trusts. Although Trusts executed without witnesses are still valid under Maryland law, we strongly recommend that witnesses be utilized to ensure that the Trust will not be challenged at a later date. For clients who need to execute Trusts during the current crisis, we recommend that the Trust be re-executed, observing all ordinary formalities, once the virus has subsided.

The Executive Order will remain in effect for the duration of the COVID-19 State of Emergency. However, we have been informed that the Maryland State Bar Association Trusts and Estates Section has drafted emergency legislation designed to sustain remote witnessing after the expiration of the Executive Order. This legislation will either be introduced during the 2020 Special Session of the General Assembly (if not delayed or postponed), or in the next Regular Session in January 2021.

The District of Columbia continues to permit Wills to be witnessed and notarized remotely. Virginia has not yet authorized remote or electronic execution of any estate planning documents. Despite these limitations, our attorneys and staff are working diligently to ensure that clients are able to obtain the documents they need to protect their families and their assets – whether it be through remote execution or other means. For more information regarding your estate planning questions or concerns, please contact the author of this article Jamie K. Blair or any member of our Trusts and Estates Practice Group.