Audio-Visual Remote Notary Allowable Now in Georgia (updated 4.15.20)

This blog post now includes an April 15, 2020 update, that I set forth at the bottom of this original post.  Immediately below is my original post.

Georgia Governor Kemp, on April 9, 2020, signed an Executive Order allowing lawyers (or a Notary under the supervision of the lawyer) to sign documents remotely as a Notary Public, with the following requirements:

(1)  The lawyer as Notary (or his or her supervised Notary) participates as the Notary Public by a real-time audio-visual means (Zoom, etc.) along with the individual(s) whose documents need to be notarized;

(2)  The Notary during the audio-visual meeting reasonably verifies the identity of the individual whose signature is being notarized;

(3)  The Notary actually witnesses the person sign the documents while the Notary and individual are together connected to the audio-visual meeting;

(4)   The Notary must physically be in Georgia while participating in the audio-visual meeting (see my additional comment further below about this participation point);

(5)   The documents have to be physically delivered to the Notary on the same calendar day of the audio-visual signing so that the Notary can add his or her notary stamp and signature to the documents.

The Executive Order allowing this remote Notary set-up expires either when the Georgia Covid-19 State of Emergency ends, or if the set-up is otherwise terminated earlier.

Click here for a copy of this Georgia Executive Order.

My Additional Observations about this Executive Order

This Executive Order applies only to lawyers who are Notaries, or non-lawyer Notaries supervised by the lawyer.  A non-lawyer Notary — but only if supervised by a lawyer during the audio-video meeting –can notarize documents under this remote order.

The remote set-up must include both audio and video.   My reading of the Executive Order is that it does not apply merely to audio calls.

The Executive Order allows this remote audio-visual set-up for any act that can be performed by a Notary under the Georgia notary statutes, including a Notary attestation to a sworn statement;  but, of course, for documents requiring a sworn oath, the Notary must take the individual’s oath over, and during, the audio-visual meeting.

The Notary must physically be in Georgia while participating in the audio-visual meeting. The Notary (whether lawyer or supervised Notary) must be a current, active Notary Public.

The lawyer (if not a Notary) along with his or her supervised Notary must each participate (but can be in different physical locations if necessary) in the audio-visual meeting so that the attorney can supervise the non-lawyer Notary as needed for the audio-visual documents, meeting, etc.

Finally, in my opinion, the following is an important soft spot in this Executive Order that warrants your attention.

Where Can the Individuals Signing the Document be Located?

The Executive Order does not address whether the individuals (other than the Notary) signing the documents must be present in Georgia during the audio-visual meeting.

IMPORTANT NOTE: The April 15 update below only partially touches on my concern about the location of the individuals signing the documents. The update appears to suggest the individuals and non-notary witnesses signing the documents “should”  be present in Georgia during the audio-video call. The update reiterates the point that the Notary “must” be in Georgia during the audio-video call.  I suggest readers continue to think about the concern I state below in situations where the individuals signing the documents are not in Georgia during the audio-video call.

This location-of-the-individuals remains, in my opinion, a gray area of the Executive Order. Assume, for example, the individuals signing the documents during the audio-video meeting are in New York;  the Notary is a Georgia Notary physically in Georgia during the meeting.

In short, I am not comfortable recommending — in every instance — this Georgia Notary remote set-up when the individuals signing the document are not physically in Georgia during the audio-visual meeting.  If the individuals are not physically in Georgia, there may later arise questions about whether the state law other than Georgia will recognize the Georgia remote notarization (e.g., if the document is a a sworn, notarized document, or governed by the law of a state other than Georgia). Arguably, other non-Georgia states should recognize the Georgia remote Notary order under the doctrine of comity, etc.  But, I simply do not believe the answer is unequivocally clear so as to apply this Georgia remote notarization procedure in every situation.

Update Below 4.15.20 — Now Answers the Above Soft Spot

My above original version of this post is dated April 13, 2020. Today, April 15, 2020, the State Bar of Georgia issued additional clarifying details about this remote notary situation. The additional detail is very helpful and well-presented.

Click here for a link to the Georgia Bar additional material.

I do not summarize all of the additional material. But, below are five key points from this additional material that supplement my above post :

(1)   The individuals signing the documents must be present in Georgia during the audio-video meeting (along with the Notary having to be present in Georgia for that meeting);

(2)   The Notary who participates in the audio-video meeting does not have to be an employee or agent of the lawyer;  but, in all cases with these audio-video meetings the lawyer must be present on the audio-video meeting so as to oversee and supervise the Notary;

(3)   The Georgia State Bar recommends that any documents signed under this audio-video remote set-up include the following caption at the top of the document:

Notarized Pursuant to Executive Order

(4)  And, that the Notary’s signature block include: “This [name of document] was notarized pursuant to Executive Order using [insert technology name; Zoom, etc.] as real-time audio visual communication technology.”

(5)  The additional material includes also an embedded link for suggestions from the Georgia Fiduciary Law Section about executing estate planning documents under the Executive Order.   I highly recommend estate and trust lawyers read this additional information, which also includes well-stated, thorough  recommendations.

Essential (Preventive) Estate Planning Checklist Provisions

My sample estate planning document provisions below are essential in many cases for helping prevent issues that I see in my trust and estate litigation work.

My experience indicates these provisions are not used frequently enough among estate planning attorneys.  Also, readers of this blog cannot, and should not, rely on these sample provisions nor read this post as my recommendation for using any one or more of the provisions in a particular estate planning document or situation.  But, the provisions should be on your estate planning checklist.

The following are, therefore in my view, important sample provisions for a trust document (the last two deal only with a married couple situation):

Fiduciary Duty.  In exercising any power with respect to a trust created under this trust agreement, each Trustee, Co-Trustee, and directed trustee (Article XIII) shall at all times serve in a fiduciary capacity and act in accordance with fiduciary principles, including, but not limited to, the duty of care, loyalty, and confidentiality.

Allowable Self-Dealing.  The decisions by my spouse Jane while serving as a Trustee or Co-Trustee under this trust agreement that may or could be otherwise construed as self-dealing with respect to Jane’s exercise or non-exercise of any power hereunder, or the time or manner of the exercise thereof, made as a prudent person in good faith, shall fully protect Jane and shall be conclusive and binding upon all persons interested in the trust estate; provided, however, that no self-dealing as to any charitable or non-profit interest under this section 1.7 is allowable to the extent prohibited by any applicable tax or non-tax laws or related regulations.

Divorce[But, see my Important Note below.]  Although Jane and I do not contemplate a divorce, we each acknowledge and are aware that in the event either one of us (i) files a complaint or petition for divorce in any jurisdiction or (ii) obtains a decree or judgment of divorce in any jurisdiction, Jane shall, as of the occurrence of the earlier of either of these conditions (i) or (ii), at such time be deemed for all purposes (including any position as a fiduciary and as to any trust created by exercise of a power of appointment or distribution-in-further trust) to have predeceased me as of my date of execution of this trust agreement.

Contemplation of Remarriage. Although neither Jane nor I contemplate the occurrence of a divorce from one another or a remarriage to another spouse, if for any reason following my execution of this trust agreement, I were to enter into marriage with anyone else other than Jane, my express and clear intention is that that new spouse  shall not receive any property from my estate nor under the provisions of this trust agreement, with the result that all provisions in my Last Will and Testament and this trust agreement (whether or not either document is amended after my execution of this trust agreement) shall remain fully in effect and unchanged by reason of my marriage to that other spouse.

Important Note re the Above Divorce Provision

The estate planning lawyer who represents both spouses needs to memorialize and make clear to both spouses that each spouse understands the divorce provision can result in potentially adverse consequences to either or both spouses in the event of a future divorce. The estate planning lawyer, in my opinion, also should inform both spouses together that they have the option of seeking separate counsel to review this divorce provision before the estate planning lawyer includes it in the spouses’ documents.

And, I also believe the estate planning lawyer under the ethics rules cannot include the divorce provision only in one spouse’s document if that lawyer represents both spouses, even if the spouses consent; unless both spouses seek separate counsel.  Otherwise, including the provision only in one spouse’s document — by the estate planning lawyer who represents both spouses — is substantively akin to preparing a prenuptial agreement only for one of the two spouses while representing both spouses.

Urgent Post re Beneficiary Designation for Inherited IRAs

This is urgent as it likely will require you immediately to revise your IRA beneficiary designation forms to name as part of the beneficiary designation form itself  a custodian (and successor custodian) for any account that may end up with a minor-age beneficiary. Such as an inherited IRA from grandmother, etc. This discussion also applies to adding a custodian designation to beneficiary forms for life insurance.

This is another preventive planning feature that can save you (and your family) the headache of wasted time and legal fees down the road.


Georgia law, by express statute under The Georgia Transfers to Minors Act, allows you, while you are alive, to name a custodian for a future property interest for a minor beneficiary. Such as your IRA account that later might end up as an inherited IRA in the hands of your minor child or grandchild. This statute is under Georgia O.C.G.A. Section 44-5-113.

If you don’t name the custodian while you are alive, then at your death two hurdles surface:  One.  A guardian has to be appointed for the minor-child; Two. The guardian has to petition the court for the court’s approval of a custodian under The Transfers to Minors Act provisions.  At the end of this post is Georgia O.C.G.A. Section 44-5-117(c) for this burdensome procedure.

How to avoid these two hurdles?

My suggestion here is not legal or tax advice you can rely on as advice from me for any particular situation. It is only my general response for how to add the custodian reference while you are alive to the beneficiary designation form.

  1. Many financial institution IRA beneficiary designation forms do not include an option or space to add the names of custodians. You have to adapt the form as follows:

  2. First, hand-mark on the form itself an asterisk next to the minor-beneficiary’s name.

  3. Then, in the margin of the beneficiary form add a legend for the asterisk: “See the attached Exhibit A , dated May __, 2017, that I incorporate herein by reference.”

  4. Then, prepare a separate Exhibit A that includes your naming of the custodian (and successor custodians if desired) and attach it as an exhibit to the beneficiary designation form. Sign and date the Exhibit A.

Finally, below is the burdensome Georgia statute I referred to above:

Georgia O.C.G.A. Section 44-5-117(c) [bolding added;  note in particular the “if a guardian .  .  .” reference]:

(c) If no custodian has been nominated under Code Section 44-5-113, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this Code section may be made to an adult member of the minor’s family or to a trust company as custodian for the benefit of the minor if a guardian appointed for such minor considers the transfer to be in the best interest of the minor and, on petition brought by the minor’s guardian, the transfer is authorized by the court as in the best interest of the minor.

You are Not Your Brother’s Keeper. Tax Liens and Joint Ownership of Real Property.

I cringe (figuratively speaking) when I hear of individuals who include friends and ancillary family members as joint owners of real property. Such as joint tenants in common for owning grandmother’s old house, etc.

This is joint ownership of real property with the co-owners each named on the real estate deed.  Such as “John Smith and Jane Doe, as tenants in common.” Or, “John Smith and Jane Doe, jointly with right of survivorship.”

[There are exceptions to my concern in certain cases (i) for married couples as joint owners and (ii) in states with joint “tenancy by the entirety” ownership (Georgia does not recognize tenancy by the entirety).]

Because real estate ownership is governed by publicly-recorded deed and lien records, jointly-owned property is a lightning rod for the other co-owners’ debts, judgments, unpaid income taxes, estate tax liens, etc.

Let’s assume Bill owns Atlanta undeveloped land with his distant nephew Pete. Pete owns 10% with Bill as the other 90% joint owner (joint tenants in common, to be exact). This is undeveloped land that belonged to Bill’s grandparents (Pete’s great-grandparents). Bill and Pete rarely visit the property.  It is merely a long-term, passive asset.

Bill typically remains unfamiliar with nephew Pete’s ongoing financial and tax affairs and has no idea Pete has not been paying his (Pete’s) income tax. Unknown to Bill is that the Georgia Department of Revenue has been racking up recorded unpaid tax liens against Pete (called a recorded Fi-Fa), with Pete’s unpaid tax debt continuing to increase with interest and penalties.

Bill’s 90% share is now on the hook. Although technically Bill is not liable for Pete’s tax liens. Nor is the value of Bill’s 90% portion of the land technically available to satisfy Pete’s liens. The reality for Bill is that the entire land is burdened by Pete’s tax liens.

On the other hand, Pete essentially has no concerns about his unpaid taxes or these liens. Pete, 27 years old, works part-time, has no money, etc.

Bill’s unfortunate reality is that no buyer will touch this land until Bill clears these tax liens. The Georgia Department of Revenue also has been  consistent with extending the duration of its recorded tax liens (called an “entry of nulla bona”).

Bill’s land over the years has increased in value. This results in Pete’s 10% share also increasing in value to the extent Georgia will likely demand its full claim for the unpaid taxes, penalties and interest in order to release the liens. These surmounting Georgia penalties and interest have transformed what started as nominal unpaid tax amounts into substantial issues. Bill has a costly problem.

The moral of this blog post.

Don’t — without thoughtful deliberation — become your brother’s keeper. Talk to your lawyer first about co-ownership of property. Possibly use an LLC. Or, a recorded written joint property agreement that allows a co-owner to charge the other owner’s portion of the property for these kinds of liens. Good legal advice is also an investment in tranquility.

50/50 Jury Risk. Preventing Litigation is Crucial.

I just finished a complex fraudulent-transfer litigation case that focused a great deal of contentious light on some earlier estate tax planning. The tax planning involved an estate-freeze/ sale of an LLC interest to an (income-tax  defective) Nevada trust.  I purposely make no comment here about this particular case, other than it prompts me again to remind readers of the crucial importance of preventive planning to help avoid litigation.

The competitive challenge of litigation and controversy work fuels my enjoyment of lawyering. But, for all my clients I harp constantly on preventive planning to avoid getting into litigation.  Litigation is nothing short of time-consuming war, with the odds of winning sometimes a crap shoot if the matter goes to a jury.

Individuals, who scoff at this preventive advice, with comments such as “I don’t care, let them sue me. They don’t have a case”.  Or, “We will just file a lawsuit and see what happens”, likely set themselves up for costly failure.

A wonderful late friend of mine, who was a federal district court magistrate judge, told me many years ago:  “During the 27 years I was on the bench, I never saw a case someone couldn’t lose.”

Below is my general observation about juries for this blog post.

At the end of a trial, the jury deliberates and makes conclusions about what the jury believes are the accurate, credible facts the jurors observed during the trial.  Also at the end of the trial the judge reads the applicable law to the jury, on the notion the jury during its deliberation will apply the jury’s perception of the facts to the law.  This is often called “the law of the case”.

The jury then renders its verdict essentially by the jury deciding during the jury closed-door deliberations how it will combine the facts with the law of the case.

The judge’s reading of the law to the jurors is referred to as “jury instructions”.  Prior to the judge reading these instructions to the jury, the opposing lawyers try and convince the judge to use each lawyer’s own respective written blurb or summary for each point of the relevant law.  This is called a “jury charge conference” or “jury instruction conference”.   The conference takes place among the judge and opposing lawyers without the jury being present.

Now, here is an important jury point to ponder in the context of this blog post.

If you believe you have the weaker merits in a case (for example, less than 50%), you generally will try and keep your litigation case alive with a persistent move toward getting your case in front of the jury.

This weaker-merit posture involves you primarily crafting your lawsuit allegations and discovery, etc., in a way where the issues cannot be concluded with a pre-trial motion for summary judgment or motion to dismiss, etc.

Pre-trial motions are used extensively by litigation parties to try and convince the judge there are no materially disputed facts that warrant having the case continue on to a jury.  Essentially, the pre-trial effort is an attempt to end the case before the jury factor arises.

This pre-trial motion approach, in general terms, means the judge may possibly decide and conclude the case without the case having to go before a jury.  This also means, if the circumstances support a pre-trial conclusion, the judge addresses (not the jury) what and how the facts apply to the law.

Again, the weaker party tries to stall and derail this pre-trial effort.

On the other hand, if you believe you have the stronger merits in a case (more than 50%), you generally will try your best to get the case concluded with the pre-trial approach without the case going to a jury.   By using the above pre-trial motions, such as motions for summary judgment, motions to dismiss, etc., or a combination of pre-trial motions.

Now, why do I refer to 50/50 juries?

My view is that most jury trials even the parties’ odds to 50/50.   A jury, for example, may simply not like one of the parties.  Or, the law that applies to the case (the jury instructions) might involve such a complex array of laws that the jury simply makes ad hoc conclusions in reaching their verdict without the ability to apply the law accurately.

So, if you believe you have 90% of the merits in a case, your odds before a jury drop from 90% to 50%.  If you believe you have a 20% case, your odds essentially increase to 50%.

Preventive planning.  Crucial.

Inside a Lawyer’s Head: An Anniversary Gift for my Wife and the Sales Receipt

“We are happy to offer an exchange or merchandise credit within 30 days of your purchase for items in their original condition and packaging with an original receipt or gift receipt. We cannot accept damaged, altered or ‘Final Sale’ items for return or exchange.”

A couple weeks ago for our wedding anniversary, against my wife and me typically getting one another token gifts, I purchased a larger-ticket item from a high-end boutique store. At the time of my purchase I told the store clerk there was a good possibility my wife will ask me to return the item, particularly if it does not spark a strong preference for her. To make the story short, three days later I returned the item. Not exactly my wife’s style. We men are not the greatest personal shoppers.

The bottom of the sales receipt includes the blurb at the top of this blog. And, BTW, this was not a “Final Sale” item. My impression at the time of my purchase was the sales receipt includes no express denial of a refund and gave me arguably room to press for a refund, if necessary.

Why this blog post? Two points.

When I went back to the store for the return, the store manager (not the sales person I dealt with earlier) referred me to the bottom of the sales receipt. She nicely said “No refunds. Store credits only.”

Well, I in a mild-manner politely told the manager I am a lawyer and that the sales receipt provision, in my opinion, is insufficient to deny a refund and that it would never stand if challenged. She, again very nicely, gave me a refund.

Here is my first point for this blog post. I remind readers that the printed policy at the bottom of a sales receipt, especially when signed by the customer, is legally binding. I already knew this. And, I already knew that if a sales person gives you verbal assurances contrary to the sales receipt provision, such as “Sure you can return the item if your wife does not like it”, the sales receipt will trump these verbal promises. There is a Georgia court opinion on point, Google: McCrimmon v. Tandy Corp., 414 S.E.2d 15, 202 Ga.App. 233 (Ga. App., 1991).

The second point is that I had already observed when I purchased this gift that the sales receipt arguably has some defects. One, it states the store will “offer” within 30 days an exchange or merchandise credit for returns. Under contract law, an offer is an offer. It requires an acceptance. I have, therefore, the option of rejecting this “offer” option.

And, more interesting (at least to me), this sales receipt reminds me of my favorite law school legal doctrine, often stated in Latin: Expressio unius est exclusio alterius, which reads generally “The express mention of one thing implies the exclusion of another.” It arguably applies as follows.

The sales receipt expressly and clearly states there is no return for damaged, altered or ‘Final Sale’ items.   Under this expressio unius argument there is an implication that all other items — if not damaged, altered, or marked “Final Sale” — are returnable with no prohibition otherwise on the sales receipt. The term “Final Sale” also implies other sales not marked Final Sale can be returned.

Regardless of the possible legal arguments, the take-away point is to plan your anniversary gifts carefully. No one likes returns. I also commend the store manager who dealt with me in a patient, courteous manner. Not everyone likes lawyers.

McDonald’s Double-Quarter Pounder with Cheese Triggers Georgia Traffic Ticket

Busted.   Click here for details.  But, the charges were dropped last Friday as the Cobb County Solicitor’s (Georgia) office apparently concluded it did not have evidence sufficient  to prove this case beyond a reasonable doubt. Click here for today’s commentary about the dismissal.

Mediation in Litigation. The Good. The Bad.

I am not generally a fan of using mediation to resolve disputes. But, if you face mediation (such as in court-ordered mediation), the focus needs to be on whether you believe you are holding the stronger position or the weaker position in the dispute. In short, if you hold the weaker position, you will probably be better off with the result you get in mediation. If you hold the stronger position, you likely will pay a price and lose ground with the result.   This strong / weak distinction ought to be a litmus test as to whether you use mediation, and also give you pause to consider who you choose as the mediator. [Of course, I also realize that in many cases each party believes his or her side reflects the stronger, more meritorious position.]

As background, mediation uses a third-party neutral person who, as the center point, helps the opposing parties possibly find a way to resolve and settle a dispute. The mediator is most often an experienced lawyer. Typically, the mediation is scheduled for an entire day in order for there to be a long, repetitive, back-and-forth effort by the parties to arrive at a settlement.

The Up-Side for the Weaker Party —   If your client holds the weaker position in the dispute with less than 50-percent odds, mediation can enhance your client’s outcome. My experience has shown me that the bulk of mediators generally will move the parties in the direction of simply cutting the case in half. That is, these mediators will essentially split the value of the case in half equally, or almost equally, between or among the parties without the mediator voicing his or her opinion of the merits of the two sides. This is a Solomon cut-the-baby-in-half approach. This means the side with the stronger position is relentlessly pushed to a mid-point, substantively equalizing the odds to 50-percent for each side.

So, What Does the Stronger Party Do? — The above 50-50 equalizing of the mediation result generally suggests the stronger side should avoid mediation, if possible. But, if not possible, the stronger side needs to insist on selecting a mediator who, during the course of the day’s mediation, will give the parties his or her reaction, judgment or take on how the mediator views the merits of the litigation or dispute. As to the stronger party, this mediator feedback can help downgrade the weaker side’s overvalued assessment of their case. This downgrading effect also can be a productive, beneficial aspect of the mediation even if the case is not resolved in the mediation.  In other words, if you are the stronger party, focus on finding a merit-based mediator. Also, as the stronger party, realize you most likely will not settle the case in the mediation if the result is merely a Solomon cut-the-baby split.

Update your Definition of “Spouse” in Legal Documents

The jumbled status of states that do and do not recognize same-sex married couples mandates that you clarify in legal documents (particularly for trusts and estates) your preferred definition of “spouse”.   The following is a broad definition that includes same-sex spouses:

19.4    In applying any provision of this trust agreement that refers to a person’s “spouse”, that spouse shall include a married person as to either (i) opposite-sex married couples or (ii) same-sex married couples, whose marriage [as to clause (i) or (ii)] is recognized either, or both, in such married couple’s state of celebration or state of residence or domicile.

Possibly Avoiding a $6,000 North Carolina Probate (Estate) Fee

I am a big fan of stand-by living trusts (revocable trusts called a Declaration of Trust) for a person’s core estate planning document.  It is a trust often unfunded presently, but in place and ready for funding and use if the person (the settlor) thereafter becomes incapacitated.  This is a much better (and in the long run results in lower legal fees) than otherwise trying to manage property during a person’s incapacity under a (i) financial power of attorney or (ii) court-managed guardianship.

Here is a North Carolina situation where you — if you live in North Carolina — benefit from funding the trust now rather than waiting later at your incapacity or death.

Funding the living trust now prior to death avoids exposure to the following North Carolina statutory probate fee.  North Carolina law under G.S. §7A-307(a) imposes a probate fee on non-real estate at a person’s death, if the non-real estate passes under the terms of the owner’s Last Will and Testament.  This statutory fee (payable to the court) is 40 cents per $100 value of the non-real estate property, not to exceed $6,000.  This computes to the maximum $6,000 fee on $1,500,000 of non-real estate passing under the terms of a person’s Will.

The above goal is to have your living trust hold and govern your property for your beneficiaries at your death, rather than your Last Will and Testament.   This avoids the above probate fee.

Qualified retirement accounts such as IRAs, 401(k), if governed by a beneficiary designation to a beneficiary other than the account owner’s estate, do not pass under a person’s Will and are not subject to this $6,000 probate fee.