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One Estate Planning Doc You Can Legally Execute Today in Wisconsin Without Witnesses or a Notary

Multi-Part Series--Episode 1

Discover one estate planning document you can execute without witnesses or a Notary while you are at home during the Coronavirus Pandemic. Attorney Thomas B. Burton discusses this document and how you can legally sign and execute it for free in your home, even during the Coronavirus pandemic.

To see the next video in this series, join my new group Wisconsin Probate, Trusts, Estates & Asset Protection Info Group on Facebook.

Transcript of Video: One Estate Planning Document You Can Execute Today Without Witnesses or a Notary

Okay, welcome. Today, I want to talk about one estate planning document. You can execute legally in the state of Wisconsin without even having witnesses or an a notary present. So most of you know that to execute a will in the state of Wisconsin you need to do it in front of two disinterested witnesses.

But there are a few documents you can execute on your own and the statutes do not require witnesses or a notary. So most people don't even know this but today I was on a conference call with lawyers all over the country a webinar discussing how to execute documents for our clients during the coronavirus pandemic and one of the issues there is that a lot of the state statutes say for a will someone needs to be within your conscious presence when you're signing the will to witness you and generally it requires two witnesses most states. Now a few states have updated their statutes and like Iowa, they were saying allows for video witnessing but we're not there yet in Wisconsin.

And so if it isn't in the statutes we look at the case law and you'll see behind me our example of law books. This is the Wisconsin law library and that's where we get the case law from past court decisions. So as of now there's no court decisions even across the country very few about executing a will be a live video conference.

Now my guess is after this Coronavirus pandemic, we may have some cases like that because some people may be desperate to execute a will and if they're locked down in a nursing home, they may do it that way with a live video witnesses and then it will go to if it goes to litigation we’ll get some court guidance on whether that works but the lawyers who have looked at the case law across the country on this conference call are saying we don't have a decision on that conscious presence definition.

So anyway, it got me to thinking what is some estate planning documents folks could execute during this time from now until April 24th, at least here in Wisconsin when we have this Safer At Home Order. And one document you can execute is a Wisconsin power of attorney. So, I've got the statutes here, it's Wisconsin's statute 244 and you can validly sign a power of attorney in the state of Wisconsin and sign and date it and have it formed as of that date.

So right here in the statutes. I'm going to go to 244.05 and it lists the requirements for execution of power of attorney. To execute a power of attorney the principal that's you if you're the one making it the principal must sign the power of attorney or another individual in the principal's conscious presence and directed by the principle must sign the principal's name on the power of attorney.

So what that means is let's say you're getting older and you can't physically sign your name anymore. You can direct someone to sign it for you. So this or you're just unable to do to physical health but with my older clients I sometimes tell them if it's a problem signing they can direct another person to sign for them.

But in general, if you're watching this and you can do it at home, you could sign it yourself with your signature, but even if you can't physically sign we have an option for that. So notice it just says you must sign the power of attorney to execute it and I would recommend dating it as well.

A signature of the principal on a power of attorney is presumed to be genuine if the principal makes an acknowledgement of the power of attorney before a notarial officer authorized under chapter 140 to take acknowledgements. So that's the key there most of the time we notarize your signature after you sign of durable power of attorney for finances.

However, it's not strictly required. So during this coronavirus pandemic, if you don't have one in place you could execute and sign one at home and it would be totally valid. Now the banks are used to seeing your signature notarized so what I recommend is when the pandemic is over you get your signature acknowledged in front of that, notary or take advantage of the drive through signing option at my office, you can watch my other video about that on my law firm page, but today I wanted to give folks some education information is power right on what you could do right now while you're in your home. So Wisconsin chapter 244, they even have a statutory power of attorney for finances, which is written by the legislature and free for anyone to download and sign and you can go online and search for that the Wisconsin statutory power of attorney for finances.

And get a copy now I recommended you're able to work with the attorney like me to draft a custom one but the statutory one will work just fine. You're going to have to go through it on your own and fill it out. And there's blanks here where you just print it in and I'm sorry this maybe isn't showing up so good on the background but you print in your name and the name of your agent and then you go through some check boxes.

So that's why I normally recommend you work with an attorney to help you talk through those decisions, but if you're in an emergency or rush you can do this all on your own and then you'll see on here you can give special instructions and at the end it says your signature date your name printed and then state of county of and that's for the notary if you sign it before notary but you don't have to do the notary part right now.

So if you watch my other video, you know Wisconsin authorized remote notarization for certain documents, but they're not including estate planning documents like this power of attorney yet before a Wisconsin notary, so the state bar lawyers we've discussed it and right now these estate planning documents, you don't want to do with that remote notarization, but it should work for deeds, real estate contracts, other documents, however to me, it's still somewhat of an open

question, whether if you were in this emergency you could sign this power of attorney, it would be valid and then have it notarized remotely by a notary licensed in another state. I think that could work although the statute is saying they don't want you to do the remote notarization with a Wisconsin notary like me, but Virginia has had the remote notarization for a while so anyway, there's an option there.

I'm not sure if anyone has tried it yet but in looking through the statutes that occurs to me, but today's video. I just want to tell you about it one step you could take today to execute and sign this power of attorney and it's even free from the Wisconsin legislature this one here is 14 pages you can print out and sign and you would have a valid power of attorney and that might give you some peace of mind now the power of attorney is only effective while you're alive.

I should I have some other videos on what a power of attorney does but for today It basically allows you to name an agent to take care of your financial affairs if you're ever incapacitated or unable to act so it's a good idea for everyone to have one in place and let's say you did get the virus and were trapped in a health care facility for a period of time or on the ventilator like we're hearing about folks you could name a spouse a child a tested friend or relative to be your agent during that time pay your bills and manage your affairs now you want to think through what powers to give to that agent, that's why I suggest you work with an attorney when you do this but. You can validly print this out and sign it and have a valid power of attorney in place today and there you can see the seal of the state of Wisconsin what I'm thinking is, okay, this is a measure you could take for the next couple months stop gap measure if you're trapped in your house and then if things subside as we hope they will you could later go to the bank or come to my office and have that signature acknowledged before the notary public at a later time because if you'll notice here, it's an acknowledgement.

So you you can do that at a later date. So again today's video one document you can do today and have in place which is part of in my office a complete estate planning package and I'm going to do a series on this but this is the first document you could sign today without witnesses or an notary required to be legally valid in the state of Wisconsin.

So stay tuned for parts the next parts in this series and one thing I wanted to mention is my new Facebook group just debuted a few days ago. Wisconsin Probate, Trusts, Estates and asset protection information group that's designed for videos like these informative videos information sharing a community resource because like I said knowledge is like these books behind me is power so my goal with this group is to inform people get it out to all of Wisconsin and then people can collaborate and help each other in the group and then if they have questions they can post them in the group and I'll try to answer them in Q&A legal videos just like you've seen on my YouTube channel and other places. So if you want to join that group, I'm going to put a link in this post and you can join the new group and we'll see you there in my plan is to post more of these videos in that group as we go forward, especially during the Coronavirus pandemic over the next month or so.

So if you want to see more of these I'm going to move those videos to that group. So again today one document you can sign and have legally valid during the coronavirus pandemic is a Wisconsin statutory power of attorney for finances and property. So thanks for watching stay well and we'll see you next time.

© 2020 Burton Law LLC. All Rights Reserved.

Transcript and captions provided for ease of access for the hearing impaired.

For questions about this topic, or to suggest a topic for a future blog post, please contact my office.

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