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Witnesses to Wisconsin Estate Plans Must Be In Person

Wisconsin estate planning documents need to be properly witnessed.  Wisconsin law requires witnesses to be in the “conscious presence” of the person signing a will.  That has been interpreted to mean that witnesses must be present with the signer. Not observe the signing remotely through video conferencing.  For a document to be notarized, the person must “appear[] before” the notary.  This, too, has been interpreted to mean that a document must be notarized in person.

On March 18, 2020, (When Wisconsin was first seeing an increase in COVID-19 cases) the Wisconsin Department of Financial Institutions issued emergency guidance allowing some documents to be notarized remotely – but not for estate planning documents.  http://wdfi.org/Apostilles_Notary_Public_and_Trademarks/pdf/Emergency%20Guidance%20-%20Remote%20Notarization.pdf

Many states allow remote witnessing and notarizing of estate planning documents.  However Wisconsin does not currently.

Remote witnessing and notarizations would be helpful in the midst of the COVID-19 pandemic. Many of us are being careful to limit in-person interactions.  However, information shared by social media and “do it yourself” estate planning websites, can be miss-leading as states have different rules. There is a high risk that people are getting bad information about how to properly execute their estate plan.  Even the local newspaper recently printed misinformation that courts will accept a will without witnesses – which just isn’t true. 

Even the local newspaper recently printed misinformation that courts will accept a will without witnesses – which just isn’t true.
Even the local newspaper recently printed misinformation that courts will accept a will without witnesses – which just isn’t true. 

It is critical to work with a legal professional in the state where you reside.  A Wisconsin resident could read this AARP article or the Journal Times article pictured above and use one of these do-it-yourself legal website or a template. As a result, the documents would not be valid without an appropriate witness/notary (Even with a remote witness).

With all this in mind, The State Bar of Wisconsin’s Real Property, Probate, and Trust Law Section filed an emergency request for a temporary order that would permit remote witnessing of certain estate planning documents in light of the COVID-19 pandemic.

However, the Court declined to issue an emergency ruling.

https://www.wicourts.gov/news/docs/emergencyestateplanning.pdf

This is disappointing, but attorneys across Wisconsin will persist.

Since the COVID-19 pandemic first appeared in Wisconsin two months ago, lawyers across the state have been working hard to make sure our clients can safely execute their estate planning documents.

Due to safety concerns for our clients, Rebecca Mason Law is meeting by phone, FaceTime, and even Zoom.  We share drafts electronically.  We are conducting signings curbside outside our firm – or standing by the curb outside your home and observe you while you sign from the comfort of your own front porch. 


Resources:

WI Supreme Court Decision: https://www.wicourts.gov/news/docs/emergencyestateplanning.pdf

Guidance on Remote Notarization & Execution of Estate Planning: https://www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=27577

http://wdfi.org/Apostilles_Notary_Public_and_Trademarks/pdf/Emergency%20Guidance%20-%20Remote%20Notarization.pdf

The Syndicated Article the Journal Times ran (not posted online):
https://www.pressreader.com/usa/richmond-times-dispatch-weekend/20200426/283897345152851

AARP Article that incorrectly identifies Wisconsin as allowing remote Signing/Notarizing for Estate Planning documents: https://www.aarp.org/retirement/planning-for-retirement/info-2020/guide-to-virtual-wills-estate-plans.html?cmp=rebeccamasonlaw.com

RML Blog Post: https://rebeccamasonlaw.com/2019/03/10/estate-planning-gift-loved-ones/