As many states continue to struggle with the current surge in COVID-19 cases, the ‘new normal’ demands continued social distancing in many areas of life. What does this mean for estate planning? Clearly, estate planning is as important today, or arguably more important, than ever. But how do you plan your estate and execute critical documents if you are uncomfortable with face-to-face meetings or are required to self-quarantine?
Fortunately, many estate planning activities may be able to be done from the safety of your own home. Here are some options to consider, but keep in mind that requirements vary significantly from state to state, so it is important to discuss your plans with your estate planning advisor.
Most Planning Can Be Done Remotely
There are definite advantages to meeting with your advisor in person to talk about creating or updating your estate plan. However, these discussions can be conducted in video conferences or phone calls, and document drafts can be transmitted and reviewed via email, secure online portals, or even ‘snail mail.’
Traditionally, estate planning documents are executed in an attorney’s office in the presence of witnesses and a notary public. In-office document signings may still be possible with appropriate precautions, but there are other options that may allow you to avoid traveling to an attorney’s office.
The options available depend in part on the type of document being signed:
In most states, a typewritten will (as well as a modification or codicil to an existing will) must be signed in the physical presence of at least two witnesses. Typically, those witnesses must be disinterested — that is, they do not stand to inherit or otherwise benefit under the will. But some states permit family members or other interested parties to serve as witnesses. In those states, it may be possible to conduct a will signing at home (with instructions from your attorney) and have members of your household witness it.
What about notarization? Wills are usually notarized as a best practice, but in most states it is not required. However, wills are often accompanied by a self-proving affidavit, which must be notarized.
Another option in some states is a “holographic,” or handwritten, will, which generally does not require witnesses or notarization.
In many states, you can sign a trust document without witnesses or notarization, and it may even be possible to sign it electronically. One potential strategy for avoiding traditional will-signing requirements is to sign a holographic “pour over” will that transfers all assets to a revocable trust, which can accomplish many of the same objectives as a traditional will.
Monitor Legal Developments
Requirements for signing estate planning documents have been evolving in recent years, and the COVID-19 pandemic may further accelerate the process. A few states permit electronic wills (e-wills) and online notarization, which makes it possible to execute these documents without the need for physical interaction with anyone. These technologies are still in their infancy, but they are being considered by lawmakers in many states. Contact us with any questions regarding your estate planning documents.