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.
On April 23, 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. As soon as Governor Baker signs it into law, which we hope and expect will happen the week beginning April 27, we can prepare and finalize all of the estate planning documents you may need, without you leaving your home.
If for some reason the Governor does not sign the bill, we can still help get you where you need to be without risking COVID-19 exposure.
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. If Governor Baker signs the new legislation, the process will be much easier.
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?
We will be posting an update as soon as we hear that the remote notarization bill has been signed. In the meantime, there is no reason you can't get started putting your plan together. We can speak with you by phone or video-conference to better understand your family and your goals, and draft the documents you need.
If we have gotten the green light to witness remotely by the time you have reviewed and approved your documents, we will set that up and get your documents finalized. Even if for some reason that does not happen right away, we can either set up a drive-up signing or simply h old your final documents until we all have clearance to meet in person again. Either way, you will have taken all of the hardest steps toward getting your estate plan in place.
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!