Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution in the Post-covid World

• Jurisdiction: Georgia,United States
• Citation: Vol. 56 No. 1
• Publication year: 2021

Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution in the Post-COVID World

Jessie Daniel Rankin
University of Georgia School of Law, jdr79321@uga.edu

Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution in the Post-COVID World

Cover Page Footnote
* J.D. Candidate, 2022, University of Georgia School of Law; B.A., 2018, University of Georgia. I would like to thank Professor Lisa Milot for her helpful guidance in writing this Note and the Editorial and Executive Board editors for their thoughtful and diligent efforts. I would further like to thank my parents, Dan and Jill Rankin, for their constant support, and my love, Rachel, for always inspiring me to be my best.

SOCIALLY DISTANT SIGNING: WHY GEORGIA SHOULD ADOPT REMOTE WILL EXECUTION IN THE POST-COVID WORLD

Jessie Daniel Rankin^*

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In the wake of the COVID-19 pandemic, Georgia Governor Brian Kemp and other state governors issued emergency executive orders authorizing the attestation and execution of wills, trusts, and other testamentary documents through the use of audio-video technology. Most states have traditionally required that such testamentary documents be signed in the physical presence of two or more witnesses to be valid. Georgia's executive order permits these witnesses to instead observe the signing via video-conferencing software, alleviating the requirement that the witnesses be physically present with the testator. This authorization, however, only exists through this executive order and could lapse or be overturned by another executive order.

The Georgia General Assembly should codify a version of the governor's executive order to permanently allow remote execution and attestation of testamentary documents. Remote execution and attestation increases access to estate planning services—particularly in Georgia's rural communities—without sacrificing the traditional safeguards of wills formalities. This Note presents the arguments for permanently adopting remote execution and attestation, explores efforts by other jurisdictions in this area, and presents a suggested set of criteria for the Georgia General Assembly as guidance when considering such legislation.

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Table of Contents

I. Introduction....................................................................393

II. Motivating Hypothetical.............................................396

III. Access to Estate Planning Services.........................398

IV. Wills Formalities.........................................................401

A. THE HISTORY OF WILLS FORMALITIES.......................402
B. GEORGIA WILLS FORMALITIES...................................403
C. THE FUNCTIONS OF WILLS FORMALITIES...................405
D. REMOTE EXECUTION COMPORTS WITH WILLS FORMALITIES............................................................407

V. Departures from Formality and Guidance from Other Jurisdictions...................................................................412

A. OTHER STATES' DEPARTURES FROM FORMALITY.......412
B. REMOTE EXECUTION IN OTHER JURISDICTIONS.........414

VI. Proposed Legislative Amendment Conditions.........417

VII. Conclusion...................................................................420

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I. Introduction

On March 11, 2020, the World Health Organization declared the novel infectious disease COVID-19 a pandemic.¹ This announcement, which came in the midst of over 118,000 infections and 4,291 deaths worldwide, called on world leaders to intervene to mitigate the spread and damage of the disease.² In the United States, the weeks that followed were among the most substantial societal upheavals in recent history. Then-President Donald Trump declared the pandemic a National Emergency,³ and state governors and other local leaders began enacting shelter-in-place orders, limiting gatherings, closing "non-essential" businesses, and forcing millions to attend school or work via home computer.⁴

Georgia Governor Brian Kemp's response to the pandemic included Executive Order No. 04.09.20.01, which temporarily authorized "the use of audio-video communication technology" to satisfy the physical witness or notarization requirements for documents such as wills, trusts, and powers of attorney.⁵ Georgia was neither the first nor the last state to enact such a measure; as of December 23, 2020, twenty-one states allowed for emergency remote witnessing, and forty-five allowed for emergency remote notarization.⁶ In light of such authorizations, as well as the sense of

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urgency many people felt to finalize an estate plan during a deadly pandemic, many estate planning attorneys and law firms maintained their practices in this remote format despite the challenges of social distancing.⁷ In June of 2021, over a year after the initial order's issuance, Governor Kemp issued an additional order extending the authorization of remote will executions.⁸ This authorization stands on fragile ground, though: it will expire upon lapse or termination of the relevant orders.⁹

Amidst the societal upheaval brought about by the onset of the COVID-19 pandemic, many have made predictions about the ways in which the pandemic will change American life in the future.¹⁰ For

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example, some expect increases in remote work and school arrangements, a prediction that seems reasonable considering that some businesses have already announced intentions to continue remote work arrangements indefinitely.¹¹ In light of the emergency remote execution orders, and with the expectation of forthcoming changes in business practices and everyday life, it is worth asking how the practice of estate planning will change. Could this area of law—which has largely clung to traditional formalities despite the technological advances of the digital age¹² —undergo an evolution in the foreseeable future?¹³

This Note argues that Georgia should consider amending existing legislation to permanently authorize the remote execution and attestation of wills and other testamentary documents. It explains why the Georgia legislature should adopt this approach, demonstrating that it would serve the fundamental aims of estate planning law, increase access to estate planning services, maintain the requisite safeguards of wills formalities,¹⁴ and remain within the bounds of national trends. Part II provides a motivating hypothetical that highlights potential hazards of estate planning under current Georgia testamentary law. Part III then explores the ways in which remote will execution can alleviate issues regarding access to estate planning, particularly among rural clients. Part IV

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presents an overview of wills formalities and explains how remote will execution can comport with the functions of those formalities. Next, Part V looks toward advancements in testamentary laws of other jurisdictions to evaluate the feasibility of remote will execution in Georgia. Part VI then proposes statutory conditions and qualifications for the Georgia General Assembly to account for when considering the adoption of remote will executions.

II. Motivating Hypothetical

The following hypothetical scenario illustrates key issues related to will execution. Lucille is an 80-year-old widowed mother of two. She is of sound mind but suffers from severe rheumatoid arthritis to the point that she is mostly confined to a wheelchair. She lives with her niece, Susan, who is her full-time caretaker. Lucille and Susan live in Butler, Georgia, a rural town roughly two-and-a-half hours south of Atlanta with a population of less than 2,000 people.¹⁵ She is estranged from her two adult children who have not spoken with her in over twenty years. Susan is undoubtedly the only family member with whom Lucille maintains a meaningful relationship. Lucille is also the owner of a fifty-acre tract of land in Butler estimated to be worth approximately $500,000. She maintains a $500,000 savings account of funds that she and her late husband earned while managing their cattle ranching business.

Lucille wishes to divide her $1 million estate by gifting her real property to Susan and the remaining $500,000 to her local church.¹⁶ She seeks the services of an estate planning attorney to effectuate her wishes, but the nearest attorney's office is over an hour away. Additionally, her arthritis makes it incredibly painful for her to travel long distances by car. Lucille is left in the predicament of either finding an estate planning attorney willing to drive to Butler

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or facing the risks of trying to execute her will without the assistance of counsel.

Under Georgia's Executive Order No. 04.09.20.01, Lucille could contact an attorney to draft her will and arrange for a virtual execution ceremony, allowing her to sign a will with the requisite witness attestations from the comfort of her home.¹⁷ This scenario does not even contemplate the obstacles posed by COVID-19, the emergency from which this authorization arose—particularly shelter-in-place orders and the heightened risks of health complications that elderly individuals face.¹⁸ Rather, it contemplates different obstacles to estate planning that existed prior to the pandemic and will likely persist afterwards—namely, the challenges of living in an underserved legal market and the difficulties of traveling at an advanced age compounded by illness or other physical conditions.¹⁹

Further suppose that Lucille executes her will remotely and passes away shortly thereafter. Susan offers Lucille's will for probate, at which point it would be subject to challenges by interested persons.²⁰ Likewise, suppose that Lucille's estranged children, upon learning of their disinheritance, challenge the will's validity for improper execution. In the absence of an emergency

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authorization or statutory amendment, Georgia law would likely invalidate the will entirely rather than protect Lucille's written testamentary intentions.²¹ The probate court would deem...