View Newsletter and Announcements

June 2020 Newsletter – Estate Planning during COVID-19 And Beyond

ESTATE PLANNING DURING COVID-19 AND BEYOND

Although there are many life events such as marriage, birth of a child, death of a relative, or sale of a business that affect one’s decision to accelerate estate planning, the creation of an estate plan is especially important for persons of a certain age or health condition.  With the presence of CoViD-19, mortality is suddenly on everyone’s mind. Individuals, who would not have immediately prepared a Will, Power of Attorney (“POA”) and/or Living Will/Health Care Directive, are suddenly rushing to their attorney to have these documents drafted.  Individuals whom this office is receiving calls for their immediate estate planning needs are healthcare workers and individuals who are 65 years and older, living in a nursing home or long term care facility or any age with an underlying medical condition.  However, with the increase in clients, attorneys are faced with the dilemma of arranging meetings with these clients to properly prepare and execute the documents during this CoViD-19 epidemic.

Important Estate Planning Documents 

We recommend, at the minimum, you have the following estate planning documents:

  • Will – a legal document that directs the distribution of your assets after death and can be used to appoint the person who will carry out your wishes (your executor), distribute your assets and the guardian/trustee for minor children. If you die without a will, state law will direct how your assets and other property are distributed at your death. A will requires the testator sign and date at the end of the document.  Although no witnesses are mandatory if the testator signs his or her name, witnesses are required at the time of probate to “prove” your will and a “self-proving” sworn, notarized will makes estate administration easier.  Self-proving wills eliminate the need for the witnesses to come to probate court after the testator dies. If the testator signs by mark or if another individual signs on behalf of and at the direction of the testator in his or her presence, then two (2) witnesses must sign their names to the will in the testator’s presence.  It is always prudent that all witnesses to a will execution be disinterested and are mandatory to be disinterested in certain states. The will does not need to be notarized. However, a “self-proving” sworn, notarized will is recommended in that it can be troublesome, if not impossible, to find the witnesses after the testator’s death.
  • Health Care Power of Attorney – This permits you to pick someone to make health care decisions for you, if you are incapacitated but still alive. This document is often paired with the living will.  A health care power of attorney is important during this pandemic as the risk of hospitalization is high for many individuals. The health care power of attorney requires two (2) witnesses, each of whom is 18 years or older. No notary is required.
  • Living Will or Health Care Directive -This document outlines the kind of life saving medical care you want if you are terminally ill. You can explicitly provide instructions regarding end of life care and what care you do and do not want. You may also  give your Health Care Power of Attorney Agent the authority to make the decisions.
  • General Power of Attorney – This document allows you to grant someone the authority to handle and administer your financial and legal affairs and transactions. You can choose whether the power starts immediately or only after you become incapacitated. The General  Power of Attorney requires two (2) witnesses, each of whom is 18 years or older and is not the agent designated in the general power of attorney or the notary public or other individual authorized by law to take acknowledgments before whom the power of attorney is acknowledged.  Your execution or signature must be acknowledged before a notary public or other individual authorized by law to take acknowledgments.

Our Response to CoViD-19

The first step in will drafting is the initial attorney-client meeting where the attorney meets with the client to discuss his/her wishes, needs and concerns. It is the responsibility of the attorney to be sure the individual has the testamentary, mental capacity to prepare and sign a will. The attorneys in our office are able to have these meetings virtually via video conferencing.

During this virtual meeting, the attorney can gather all necessary information for not only the will but also the power of attorney and living will/health care directive documents. Once the attorney has all the necessary information and has assessed the mental capacity of the individual, the attorney can draft the documents. The will execution is usually done at our office with the witnesses and notary present. This is the hardest part during this pandemic and social distancing.

Traditionally, during your will execution we have 2 witnesses and a notary on hand to notarize the documents. However, with virtual meeting and will execution the presence of witnesses and a notary are difficult. Some states have addressed this by allowing remote notarization. However, if an individual is social distancing at home with his/her family, it is likely any potential witnesses would be beneficiaries under the will. This is not recommended in that it disqualifies the witness to be a beneficiary in certain states and although allowable in Pennsylvania, non-disinterested witnesses can create an unnecessary potential undue influence, coercion or fraud will contest.  Thus, it is recommended that the witnesses be disinterested and not the spouse of a beneficiary.

If the attorney’s office is open on a restricted basis to perform certain “essential functions”, the attorney and client can choose to meet in person. The client should be assured that our office will be taking all the necessary precautions including the CDC recommended cleaning of the office throughout the day.

Whether you need to re-evaluate your estate planning documents or draft them for the first time, our office is working every day and available to assist you.  Contact us to see how we can ensure you are where you need to be with your Estate Planning.