April 06, 2020
Execution Requirements for Documents to Be Valid Under State Law
The State Bar of Wisconsin Real Property, Probate and Trust (RPPT) Section has developed a list of execution requirements for estate planning and other documents to be valid in Wisconsin, a quick guide for lawyers to access.
April 6, 2020 – The State Bar of Wisconsin Real Property, Probate and Trust (RPPT) Section has developed a list of execution requirements for estate planning and other documents to be valid in Wisconsin, a quick guide for lawyers to access.
At its recent virtual town hall meeting, hosted by RPPT section members and the State Bar, moderator Bradley Kalscheur of Michael Best & Friedrich LLP offered a list of statutes with execution requirements and discussed a number of related issues.
An RPPT Section committee helped draft guidance related to remote notarizations, noting that an emergency rule that allows remote notarizations excludes estate planning documents, but lawyers can use remote notarization with real estate documents.
Here’s the list of statutes identified by Kalscheur and discussed by all moderators, including RPPT Section Chair Catherine Priebe (Cetus Legal Group Ltd.), Jeff Goldman (DeWitt LLP), and Bush Nielsen (Reinhart Van Deuren S.C.):
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Topic
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Statute
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Requirement
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Marital Property Agreements
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Wis. Stat. § 766.58(1)
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· No witnesses are required to create.
· No notarization is required to create.
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Wills
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Wis. Stat. § 853.03
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· To create, the document must be signed by the testator, by the testator with the assistance of another person with the testator's consent or in the testator's name by another person at the testator's direction and in the testator's conscious presence.
· To create, the document must be signed by at least two disinterested witnesses who are in the conscious presence of the testator when the testator signs or when someone with the testator’s consent or direction signs.
· Notarization is not required to create unless the testator is including a self-proving affidavit or acknowledgment.
· Wis. Stat. § 853.04 provides for notarization for a self-proved will.
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Trusts
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Wis. Stat § 701.0402
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· No witnesses are required to create.
· No notarization is required to create.
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Trust Certification
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Wis. Stat. § 701.1013(2)
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· No witnesses are required to create.
· No notarization is required to create.
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Durable Power of Attorney
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Wis. Stat. § 244.05
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· To create, no witnesses are required if signed by the principal;
· The principal’s signature is presumed genuine if acknowledged by a Notary Public.
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Health Care Power of Attorney
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Wis. Stat. § 155.10
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· To create, two witnesses required who are in the presence of the principal when the principal or someone expressly directed by the principal signs and dates.
· No notarization is required to create.
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Advanced Directives (Living Wills)
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Wis. Stat. § 154.03
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· To create, two witnesses are required who are in the presence of the declarant when the declarant or someone expressly directed by the declarant signs and dates.
· No notarization is required to create.
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Authorization for Final Disposition
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Wis. Stat. § 154.30(8)(d)2.
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· To create, two witnesses or a Notary Public are required who are in the presence of the declarant when the declarant or someone expressly directed by the declarant signs and dates.
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HIPAA Release
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45 CFR 164.508(c)(vi)
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· No witnesses are required to create.
· No notarization is required to create.
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Form HT-110
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Wis. Stat. § 867.045(2)
and
Wis. Stat. § 867.046(3)
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· Notarization or authentication is required to create.
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