Getting Your Estate Planning Affairs in Order During COVID-19

Wills, Trusts and Estates COVID-19 Blog

Social distancing and stay at home orders due to COVID-19 are disrupting almost every facet of our lives.  These developments pose unique problems for estate planning attorneys and their clients for several reasons:

– Reports indicate that COVID-19 poses a higher risk to older adults or those with health issues—the demographics that are most likely to be concerned about estate planning.

– Frequent reports about the virus can increase the sense of urgency to complete or update one’s estate plan.

– Proper execution of estate planning documents generally requires an in-person meeting.

This post serves as a brief guide to estate planning during the COVID-19 pandemic.

  1. What estate planning steps can I take during the pandemic?

Many Americans can direct the distribution of assets upon their death without a will or trust by using beneficiary designations.  These designations can often be accomplished online, via mail, or with less signing formalities than estate planning documents (e.g. a notary but no witnesses).  Retirement accounts and life insurance policies allow for the designation of both primary and backup beneficiaries.  In addition, bank accounts and investment accounts allow for similar designations using pay-on-death (POD) and transfer-on-death (TOD) beneficiary designations.  When directed appropriately, these assets transfer at the death of the owner directly to the beneficiaries designated with the financial institution.  You should contact your bank, broker, or insurance company to ask how to update your beneficiary designations.  Before executing any updates, you should coordinate with your estate planning attorney via telephone, email, or video conference to ensure your changes will be consistent with your overall estate plan and wishes.  Retirement plan beneficiary designations require special attention.

  1. How can I get started on a more comprehensive estate plan?

Much of the work that goes into updating your estate planning documents can be done without any direct in-person contact.  A typical estate planning engagement can be broken into three stages: consultation, drafting, and execution.  In trust-based planning, there is usually a fourth stage—funding.  Of these stages, only execution requires in-person contact in the form of witnessing and notarization.  Consultation, drafting, and funding can typically be done remotely.

Traditionally estate planning attorneys conduct meetings in person due to the sensitive and personal nature of the discussions.  However, thanks to modern technology, discussions and information-sharing can now be done securely through other formats like phone call, video conference, and online document exchange, thereby allowing for consultations and drafting to take place remotely.  Only the execution of the documents requires an in-person meeting.

  1. Can I sign my documents electronically or by video?

No (or not yet, anyway).  Estate planning entails the execution of numerous documents including wills, financial powers of attorney, healthcare powers of attorney, and living wills.  Under North Carolina law, all of these require a notary, and some require witnesses.  North Carolina, at present, does not permit remote, virtual, or “electronic” signing, witnessing, or notarization.  Properly executing these documents requires an in-person meeting.  However, in the wake of the current COVID-19 situation, attorneys are proposing changes to the law that would allow alternatives, such as video conferencing, for remote signing, witnessing, and notarization.

  1. What precautions can be taken for in-person signings?

We are taking proactive steps to protect our clients, staff, and attorneys during this challenging time.  When possible, we are conducting signings in our parking lot allowing clients the option to stay in their vehicle.  For signings in our office, we are regularly sanitizing meeting areas.  For all signings, witnesses will maintain a distance of 6 feet and we are using disposable gloves and pens for each separate signing.  The safety of our clients is paramount while allowing for important work like estate and incapacity planning to continue.

  1. Can I do a handwritten will?

It is worth noting a holographic will is an exception to the normal requirements for executing estate planning documents, as it does not require witnesses or a notary.  A holographic will is a document that a person writes out entirely in their own handwriting that must meet certain legal requirements, which include the creator’s handwritten name appearing on the document, expressing the creator’s testamentary intent, and the document being found among the person’s valuable papers, in a lockbox, or in the custody or control of someone with whom they have left it for  after death.  While technically valid, probating a holographic will after your death is more difficult than probating a properly executed typewritten will.  If, due to your personal situation, you wish to prepare a holographic will, please let your attorney know so he or she can provide you with specific instructions and directions on how best to prepare and execute a holographic will.  If the specific requirements of a holographic will are not met, the time and expense of administering your estate could be substantial.

  1. Do I still need a lawyer to assist with my estate plan?

Yes.  Although some of the above steps may be completed on your own, estate planning attorneys provide guidance to help you develop a consistent and effective estate plan.   We do not simply prepare documents.   We advise you and your family about how to plan for incapacity and about the most effective and efficient distribution of assets after you pass away.   We can provide counsel during these uncertain times and appreciate the opportunity to bring our clients peace of mind.

You can contact a member of our Trusts, Estates, and Elder Law Team to talk about this blog post or about your estate planning needs, goals, and questions at (828) 254-8800.