The advance of the coronavirus pandemic caused many people, particularly those who were most at risk of contracting COVID-19, to examine whether they had their affairs in order, and specifically whether they had their estate-planning documents in place and up-to-date.
For those whose estate plans needed attention, the shelter-in-place orders issued by local and state governments posed a dilemma: It made estate planning seem at once more necessary and more challenging. How does someone establish or update their last will and testament, living trust, power of attorney, and advanced healthcare directive—the four key documents of any estate plan—to ensure their affairs are in order without leaving their home and going to their estate-planning lawyer’s office?
While a California notary could not notarize an estate plan for a family in Santa Monica, a notary from West Virginia or New York, whose laws allow for virtual notarizations, could.
The answer, as many estate-planning clients are learning, is that their estate-planning lawyers’ creative lawyering and use of a combination of technologies can allow them to rest a little easier knowing their estate plans are in place and their family and loved ones are protected.
To be valid in California, any estate-planning document must meet certain criteria. For example, the subject must be at least 18. They must also have legal capacity, for which the standard can be low in the case of a last will and testament, or higher in the case of a living trust, depending on the complexity of the document.
Assuming these are satisfied, each document will be drafted to suit each client’s specific needs and wants, but also will have its own specific signing and witness requirements. Securing the information needed to create the estate-planning documents, and being able to comply with these execution obligations, can get complicated when we can’t leave our homes.
For example, normally a person would meet in person with their estate-planning attorney and provide a summary of their assets and liabilities, talk through to whom they want their assets to go, when and how, as well as who they want to be in charge of their affairs should they become incapacitated and after they pass. Fortunately, many estate-planning lawyers were able to quickly migrate to virtual meetings through Zoom, FaceTime, What’s App, or Facebook. This has facilitated involved, and sometimes emotional, decision-making.
Next, gathering financial and other asset and liability information, and providing this information to the estate-planning attorney, can be challenging if you don’t have access to business and account records and files. Even if access is not a problem, getting documents and information to the estate-planning lawyer could slow the process. Fortunately, mobile scanners like ScanSnap, mobile scanning tools like Scanner Pro or PDF Expert, and cloud storage tools like Dropbox, Box, Sync, and Google Drive make gathering and sharing this information with your estate planner relatively easy.
Once the estate-planning lawyer has all your information and knows who you want to be in charge of your affairs and to whom you want your estate to be distributed, they will prepare the estate-planning documents for review and approval, which can be completed over email.
Once approved, the documents are ready for execution. But executing documents in compliance with California witness and notarization requirements while under stay-at-home orders can be a difficult hurdle.
For example, in California a last will and testament must be signed by two witnesses who are present at the same time. This can be extremely arduous for someone living alone, an elderly couple, a couple with minor children, or a single parent obeying shelter-in-place and social-distancing orders. Normally, a will is witnessed by the lawyer or members of the lawyer’s staff, which is hard to accomplish when offices are closed. One clever estate planner, who refers her clients’ estate disputes to us, told me that she and her team witness her client’s executions virtually and then sign the witness attestations after the client returns the documents.
Similar issues abound with an advance healthcare directive, which needs to be witnessed by two individuals, neither of whom can be an agent named in the directive. A power of attorney that gives an agent financial or real estate powers, which normally are included in nearly every power of attorney form, also must be witnessed by two people, although the agents may act as witnesses.
As an alternative, an advance healthcare directive and a power of attorney may be notarized, and although living trusts do not need to be notarized, the vast majority of them are. Of course, notarizations require a notary. Normally, the estate-planning lawyer or a staff member is a notary and handles the notarizations, or a mobile notary service can stand in where remote signings are needed. The threat of COVID-19 makes these alternatives risky, requiring either that the client leave their home and visit their lawyer’s office or welcome a stranger into their home. Neither solution is satisfactory.
One solution that has been gaining steam nationally is the use of virtual notaries, which various states, including New York, have adopted in response to the coronavirus pandemic. Virtual notaries witness signatures remotely over videoconference and have tools to verify the signer’s identity just like an in-person notary would. They also preserve the record of the sign for future use if a challenge arises. Some states, like West Virginia, have been using virtual notaries for a year. Unfortunately, California has yet to allow notaries to provide virtual services.
However, all is not lost.
While California does not allow California notaries to perform virtual notarizations, California law expressly allows for virtual notarizations by notaries from other states as long as their state law allows virtual notarizations. So, while a California notary could not notarize an estate plan for a family in Santa Monica, a notary from West Virginia or New York, whose laws allow for virtual notarizations, could. At least one estate-planning attorney with whom we work has been using this “loophole” to get his clients’ estate-planning documents notarized during the lockdown.
It’s also worth noting that estate planning, during all times and especially now, is advisable not only for older and less healthy individuals but for young and healthy people as well, even if they don’t have a spouse or children, and especially if they have more assets than many of their peers.
Take the example of rapper Juice WRLD, who died unexpectedly last year at age 21. No wife, no kids—just a $3.5 million estate and a mom who’s now in probate court seeking appointment as the estate’s administrator. The time, stress, and expense of probate court could have been avoided entirely had Juice WRLD put his affairs in order as his fame and riches grew.
Now a probate court will decide the fate of his estate, whenever the courts reopen at some unknown time in the future.
Crisis drives ingenuity and invention, and the estate-planning community, perhaps undeservedly thought of as lacking flexibility and agility, answered the call of its concerned clientele with creative, cost-effective technological and legal solutions that are providing financial and emotional safety and security to families wanting to make sure that their loved ones will be protected and cared for. But frankly, no one should be surprised, because giving comfort and relief in a time of fear and uncertainty is what probate lawyers do every day.