As the crisis continues, creative legal minds will undoubtedly devise many ways to accomplish estate planning in the time of COVID-19. But for now, we must educate our clients and the greater community that quality estate planning is still available – and that distance is no reason not to properly plan for the future.
By Kara Rademacher, Trusts and Estates Lawyer
Often people do not give serious thought to their estate planning until misfortune strikes – the death of a loved one, the diagnosis of a serious illness, a divorce or separation – and the COVID-19 crisis has inspired many to focus on their estate planning. However, the need for social distancing has upended the way people traditionally went about estate planning.
Gone are the days of meeting with clients in a conference room to discuss the distribution of assets, tax credit shelters, beneficiaries, and fiduciaries. There are no more in-person meetings to review drafts, to answer questions or even to sign documents.
Some people are turning to online estate planning services to produce urgently needed Wills, Health Care Proxies and Powers of Attorney, but as many attorneys are aware (particularly the litigators among us), these online services can do more harm than good, resulting in estate plans that are inaccurate and ineffective, and ultimately end up decimated in court.
Estate Planning in the Time of COVID-19: Reimagining How We Serve Clients
From my perspective, estate planning practitioners need to reimagine the ways in which we provide client services so that we can do so safely and effectively. Here are three possible solutions.
1. You must implement virtual operations.
First, trusts and estates practitioners – possibly more so than other types of attorneys – must implement virtual operations to provide quality estate planning services to their clients in a manner that protects the health and safety of both the attorney and the client.
Zoom (with password protection) and Microsoft Teams are excellent programs to meet with clients face-to-face and offer screen sharing capabilities to facilitate the review of documents. [Ed. Be aware that Zoom is working on some very serious privacy and security breaches right now, so you might want to consider using a different video conferencing app or service for your more sensitive video calls until Zoom has resolved these issues.] Using these programs, attorneys can engage with their clients much to the extent that they did during in-person meetings. Studies have shown that considerable information about a client is lost when visual contact is lost, such as body language, non-verbal cues, tonal meaning – and it is this information that is essential to an estate planning attorney’s assessment of whether a client has the capacity to make a Will and other estate planning documents in the first place. Video conferencing can ensure that attorneys are able to cull all of the relevant information they need in order to draft an effective estate plan.
Draft documents, once sent through the mail, can be shared by e-mailing password-protected documents directly to the client, or by uploading the documents to an online server, such as DropBox. These methods not only ensure the safety of the client receiving the documents but also result in quicker turnaround – the client can review the drafts the moment they are completed, without having to wait days for delivery.
Once the drafts have been received and reviewed by the client, video conferencing can again come into play to answer any questions or explain any provisions of the documents. The screen sharing functions of programs such as Zoom and Microsoft Teams enhance attorneys’ ability to explain documents and make changes that the client can see in real-time.
2. Figure out how to execute estate planning documents while maintaining isolation protocols.
Figuring out how to execute estate planning documents while maintaining isolation has by far been the trickiest piece of the virtual operations puzzle. Unlike other legal documents, estate planning documents cannot be executed with electronic signatures – they must actually be signed by the client. However, but there are ways for this to be accomplished, even in isolation.
First, many estate planning documents can be executed with virtual assistance from the attorney. Once the draft documents have been finalized, the client can print them at home and sign them in the presence of the attorney on a video conference call. Virtual notarization has been approved in most states, and documents such as Powers of Attorney and Revocable Trusts, which in New York require only a notarized signature, can be executed entirely virtually.
Other documents, such as Wills, Health Care Proxies and Living Wills, require the signatures of witnesses, and in most states, the witnesses must be in the presence of the signer when witnessing the documents. For clients who are sheltering in place with others who qualify to serve as witnesses – i.e., adults who are not named in the documents – this is not a problem. But most people probably will not have qualified witnesses available in their homes with them because they are likely sheltering with their immediate family members – i.e., children and adults who are named in the documents.
One solution is for all parties to meet in an outdoor location with all necessary protective measures taken: all parties maintain six feet of distance, wear masks and gloves, the client provides his/her own pen and hard surface to write on and the original executed document remains in the custody of the attorney who produced it. While this solution may be a bit cumbersome, it conforms to the traditional requirements of a Will execution and may be the surest way of ensuring that the Will is later upheld.
Another solution – that is admittedly totally untested – is for the client, the attorney, and the witnesses to participate in the execution ceremony from their own separate homes via video conference. Each party would have an execution copy of the document to be signed. The attorney and the client would go through the document together, in the case of a Will, the attorney would conduct the proper execution ceremony, and the client would sign his/her execution copy before the witnesses on the video conference. Each witness would, in turn, sign in the appropriate place on their execution copy, as well as an affidavit of attestation, and the attorney would then virtually notarize the affidavit. The attorney would then prepare affidavits for all parties stating the facts of the execution ceremony: that because of the COVID-19 crisis and mandatory precautions, the parties were unable to sign the document in the same physical space, but that the witnesses observed the client’s signing of the Will, and the client observed each of the witnesses’ signing of the Will. All documents would then be returned to the attorney to be stored together.
This solution would at least provide the client with estate planning documents during the crisis; when it is safe to gather again, the client could simply re-execute his/her Will in the traditional manner.
3. Encourage clients to create and fully fund Revocable Trusts.
A third solution, that is really aimed at ensuring that the client has a Will or Will substitute in place at this critical time, is to encourage clients to create and fully fund Revocable Trusts. As discussed above, a Revocable Trust only needs a notarized signature, which can be done virtually. The client can then re-title all of his/her assets in the name of the Trust – and this can typically be done online. That way, if a client passes away, there is no need for a Will and thus no question of whether a Will was properly executed. Those clients with minor children can execute a stand-alone Nomination of Guardian, which also only requires a notarized signature.
As the COVID-19 crisis continues, many more creative legal minds will undoubtedly devise alternative ways to accomplish estate planning in isolation. But it is critical at this point to educate our clients and the greater community that quality estate planning is still available and that distance is no reason not to properly plan for the future.
Kara Rademacher, Esq. is a founding partner of the trusts and estates law firm, Douglass Rademacher LLP. She works with a wide range of clients to create innovative estate planning solutions to address unique family situations, to protect family assets and, ultimately, to assist in the accumulation of generational wealth. www.drestatecounsel.com
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