A death in the family is always a stressful event, probably much more so during a global pandemic that places severe limits on how people can gather to grieve.
But, with social distancing in full swing, the difficulties experienced by bereaved families won’t necessarily end at the gravesite.
When families try to settle a decedent’s estate, they are likely to face new challenges as they navigate the process of probating a will — something that requires signing documents in front of witnesses who are authorized to notarize them.
With many bank lobbies shuttered and government offices closed to the public, and most professionals working from home, it’s not the easiest thing to do.
But professionals are getting creative, doing things like witnessing document-signings through windows and setting up shop on backyard picnic tables instead of cramped offices, to help bereaved families navigate the probate process while still maintaining the proper social distance.
And, there’s bipartisan support in the state legislature for measures to allow notary publics to do their jobs remotely during the public health emergency, but whether one will be signed into law in time to help remains to be seen.
The first step in probating a will is contacting the county surrogate’s office. All of the county surrogate’s offices are staffed and operating, but are closed to the public during the pandemic.
Andrew J. DeMaio, an estate-planning attorney with the Red Bank law firm Neff Aguilar, said survivors need to work with the surrogate’s office to get a will admitted to probate and have an executor appointed.
Although its office is closed to walk-ins, the Monmouth County surrogate is accepting by email the necessary information and documents, such as the will, death certificate and names of next of kin, DeMaio said.
“They will incorporate them into their system and send us by email the documents we need to have the client sign,” DeMaio said. “Those papers do need to be signed and notarized.”
Monmouth County Surrogate Rosemarie D. Peters said her office will collect the necessary information from a decedent’s family by just about any means available except in-person, including by phone, email, fax, mail and courier, and then will send back the packet of required documents for the heirs to process.
If the decedent doesn’t have a will, an administrator of the estate will need to be appointed, and that also may require documents to be signed and notarized, Peters said.
Under normal circumstances, people would just come into the office and sign the documents in front of a probate clerk, Peters said.
But, with her office closed because of the pandemic, people now need to sign the documents in front of a notary public and return them to her office, Peters said.
“That’s where it gets kind of tricky, when people are quarantined,” Peters said.
Many places where people would ordinarily go to have something notarized are closed during the current public health emergency, Peters said.
“Most of the banks are closed, most of the municipal offices are closed,” she said.
While lobbies of banks may be shuttered, many banks servicing Monmouth, Middlesex and Ocean counties offer customers appointments with notaries public, said Mike Affuso, executive vice president and director of government relations for the New Jersey Bankers Association.
Customers should call their bank branch to make an appointment with a notary, Affuso said.
“A lot (of the notarizations) are being done through the drive-through (windows),” he said.
Ocean County Surrogate Jeffrey Moran said people can mail their documents to his office or leave them in a drop box in the vestibule in the west wing of the Ocean County Courthouse in Toms River, near the county clerk’s office. When it comes to having signatures witnessed, “We’ll make every effort to make it work,” Moran said.
“You lost a loved one,” he said. “We’ll do everything we can to bend over backwards. Anything and everything is possible to work out.”
During the public health emergency, that has been as simple as Moran walking down to the front door of his office to witness a person signing the documents outside, he said.
“I walked down, people sign outside, and I was inside,” he said. “There was no problem. I’m the certifying judge. I certify that everything is correct. Probate clerks also have that authority to take your signature.
“They do have to show me a form of identification that they are the executor,” Moran added. “They can show it through the window.”
The Ocean County surrogate said signed and notarized documents can also be returned to him by mail. Once he receives them, he’ll mail out the surrogate’s certificate, which is needed before a bank will release any funds, he said.
“It’s a 24-hour turnaround,” Moran said.
“The procedures vary greatly from county to county,” DeMaio said.
DeMaio said attorneys also are authorized to notarize documents. Some manage to meet with clients to do so, wearing gloves, wiping down surfaces and standing six feet apart, making sure that “as few people as possible handle the documents,” DeMaio said.
“It’s possible to meet with clients and witness signing of documents if you have enough space,” he said.
DeMaio said, however, that a typical attorney’s conference room usually isn’t large enough in some situations where documents need to be signed and notarized. For instance, when a married couple is drawing up their will, that requires two witnesses and a notary, he said. That’s five people who each need to be six feet apart.
“That doesn’t work out under today’s limits in a typical lawyer’s conference room,” DeMaio said.
Some attorneys scramble to find a larger space, perhaps a lobby in their office building.
“I’ve heard of clients going to their client’s house, using a picnic table outside,” where the parties can be far enough away from each other but still be able to witness the documents being signed, he said.
“Everybody’s being creative,” DeMaio said. “I’ve heard of people looking through windows, standing outside doors.”
Among the possible options for notarizing documents are UPS stores, many which offer notary services, DeMaio said.
“They are open because they’re accepting shipments,” he said.
“It is truly a challenging time,” DeMaio said. “I think, where they can, people are waiting for probate and to finalize their estate-planning documents.”
Meanwhile, a bill that would allow notaries public to notarize documents remotely while the public health emergency is in effect, has been passed by the state Assembly and Senate and sits on the governor’s desk for his signature. But, DeMaio pointed out that bill contains a provision for a 90-day waiting period before it takes effect, which would be too late to help in the immediate situation.
A similar bill without any waiting period has passed the Assembly, but so far, there is no companion bill in the Senate.
“During these uncertain times, it’s important that we find creative ways to allow essential services to continue,” said Assemblywoman Joann Downey, a Monmouth County Democrat who is a sponsor of the latter bill.
“Notary services currently must be performed in-person in New Jersey,” she said. “With the outbreak of COVID-19, it may become more challenging for people to get documents notarized and move forward with legal and financial transactions if residents need to self-isolate or notary offices close. By allowing notary services to be performed online, we will ensure necessary clerical transactions can move forward during the COVID-19 pandemic.”
DeMaio said an executive order has allowed for remote notarizations of documents in New York during the public health emergency.
The New Jersey Bar Association is asking that any bill allowing for remote notarization of documents also allows attorneys, as well as notaries public, to perform the remote notarizations, DeMaio said.
The notarizations could take place with apps like Zoom or FaceTime, or with programs designed with protections to authenticate a person’s identity, he said.