Ride the Lightning

Drive-by Executions – of Wills, Trusts and POAs

April 9, 2020

Forgive the subject line. "Drive-by executions" are exactly what lawyers are calling the new scenario for the executions of wills that require an original signature and verification of identity.

While a few states (Nevada, Indiana, Florida, and Arizona) provide for electronic will execution, most do not. And since we are in a pandemic, a lot of people have found the time (or perhaps the necessity) to put their affairs in order.

So what does a drive-by execution of a will look like? Everyone who needs to be there usually meets at a parking lot or at the home of the client(s). The lawyer, the witnesses and the notary are all present. Everyone who needs to sign a document brings their own pens – and of course everyone wears a face mask and gloves.

The client and witnesses may stay in their cars or step out of them, but they are close enough to see each other. The notary, as required, checks the ID(s) maintaining as much distance as possible and then moves away to sign/stamp the document. The attorney usually gets out of the car and offers any instructions needed from a distance.

The attorney may also go to the client's home, especially if the signers are infirm or ill, but stays outside. The attorney, notary and witnesses watch through a window as the client signs. The notary can check the ID(s) through the window.

For a will and the self-proving affidavit to be valid in Virginia, the person signing their will, two witnesses and the notary must all be present, in the presence of one another, for the entire ceremony.

In Virginia, typically the will should include a Self-Proving Affidavit signed by both the testator and the two subscribing witnesses together in front of a Notary. This avoids the need for one of the witnesses to appear later before the probate court or file a Deposition of Witness to Will Without Self-Proving Clause form attesting to the fact that the testator properly signed the Will, in order for the Will to be admitted to probate after the testator's death.

There are different rules for different documents (trusts, POAs, etc.) in Virginia. You must know whether you need a notary or witnesses for different documents.

And if you're not in Virginia, and your state has no law permitting electronically executed wills, I hope that the "drive-by execution" procedure described above is helpful – I have been besieged with questions about this. And yes, in Virginia, deeds must also have original signatures.

My thanks to colleagues Jennifer Ellis and Carole Capsalis for teaching me how drive-by executions work!

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225|Fairfax, VA 22030
Email: Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
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