Your Estate Plan Does Not Have to Wait
The COVID-19 outbreak has many people thinking about whether their affairs are in order. We all know that only a small percentage of people will lose their lives to the virus, but it can be sobering seeing the daily reports of deaths and hospitalizations. It also gets us thinking about what happens if we get sick and have to spend a week or more in the hospital without the ability to make informed decisions or manage our financial and legal affairs.
Many people, however, have been stymied by the stay at home advisory, and inability to meet with a lawyer to discuss estate planning. Even those who have been able to work with a lawyer remotely to prepare the documents have had to wait to sign them because the law requires in person witnesses to their signatures.
In April 2020, the Massachusetts House and Senate finally passed a bill allowing attorneys to witness and notarize documents via video-conference for the duration of the state of emergency. From now until three business days after the end of the current State of Emergency, we can prepare and finalize all of the estate planning documents you may need, without you leaving your home.
Remote Estate Planning- How Does It Work?
In order to have a legally binding will in Massachusetts, you have to sign it in front of two witnesses who are of legal age and not the beneficiaries of your will. Though not required, it is best practice to have a notary public witness those signatures. This makes your will a "self-proving" will, which means the witnesses will not need to provide affidavits or testimony to validate your will.
Other key estate planning documents have witness and notary requirements too. Your health care proxy needs to be witnessed by two people, for example. Your durable power of attorney and any trusts that you create also need to be notarized.
Existing law requires all of this witnessing to occur in person. Over the past few weeks, we have created a "quarantine workaround." Several of our clients have signed their estate planning documents in a car in our parking lot, with our staff witnessing from their own cars. Everyone is masked and gloved.
This meets the legal requirements and protects everyone safely, but is certainly an effort for all concerned. The remote notarization process is much easier.
The planning and drafting process involves a few conversations via phone or zoom between you and our team to confirm that you have chosen the documents you need to meet your goals, and to confirm details with you. It usually takes about a week to get you drafts to review, though it can be done faster if there is a need.
Once you have reviewed and approved your plan, we will send you the documents, then set up a four way video-conference with you, the attorney/notary, and two of our staff members as witnesses. We will all watch you sign the documents on video, then you will send them back to us in a prepaid overnight envelope that we provide. Once the documents arrive, we will sign as witnesses and affix the notary stamp, and send the originals back to you.
Why it is More Important Now Than Ever to Have an Estate Plan
There are many reasons that estate planning is important, with or without COVID 19. A will allows you to name guardians for your children, direct your assets to the people you want to have them, and streamline the probate process for your family.
A complete estate plan including a will and trusts can also protect your assets from estate taxes and the cost of nursing home care. It can also help your family save time and money by avoiding or minimizing the need to go through probate court to distribute your assets.
Finally, a complete estate plan includes documents that allow you to name someone you trust to make medical or financial decisions for you while you are incapacitated.
What makes this so urgent during coronavirus? It is not because you are that likely to die from the disease, based on the statistics. The real reason most people are thinking about this now is that mortality is around us generally, and they have time to think and talk about their plans with their families.
There are some reasons the crisis does make this more important, however. They include:
Planning for Illness. If you get sick and have to be hospitalized, you may not be in a position to make medical decisions or manage your financial affairs until you recover. Two simple documents (a health care proxy and a durable power of attorney) allow you to name someone you trust to fill in for you during that time.
Guardianship of Children. Anyone with minor children has some nagging concern even in the best of times about who will take care of their children if something happens to both parents. This is no less true in the age of COVID-19.
What is different is that there is a real possibility that both parents will contract the virus and be unable to take care of children for a period of time while they recover. in addition to naming a permanent guardian in your will, you can also execute a temporary guardianship document that would allow a trusted family member or friend to immediately take temporary custody of your children and take care of them while you recover.
If you have an existing will, you may already have named a guardian. This is a good time to review that decision and make sure it still makes sense. For example, if your guardian is a family member who lives in a place still struggling with the virus, you may want to name an alternate.
Protecting Your Family from Probate Court. A good estate plan can minimize or avoid altogether the need for your family to go to court to finalize your estate. It is always the case that this saves them time and money. An additional concern during COVID-19 is keeping your family from having to go to court or meet with lawyers during the pandemic.
Remote Estate Planning- What's Next?
Many of our clients are finding the remote notarization process more convenient, even if there weren't concerns about COVID. Right now, there is no legislation to make this process permanent, and our authorization to notarize remotely will end when the state of emergency ends.
That means now is a great time to get started on your estate plan, to take advantage of the convenience of a fully remote process. You can give us a call at (781) 784-2322 or shoot us an email at [email protected]. We look forward to hearing from you!
slnlaw is a law firm in Sharon Massachusetts providing business, employment law and estate planning services to individuals and small businesses