“Mortality is on the front of their minds,” Rubin said. “Spurred by the coronavirus pandemic, clients who I haven’t heard from in 10 or 15 years, as well as prospective new clients, have been reaching out to update their existing estate planning documents, or write new ones. It’s been pretty unusual to get this many requests. And they want to move quickly.”
Little wonder that fear of COVID-19, the disease caused by the novel coronavirus, has scores of people writing wills and making critical estate planning decisions about who will be in charge of their medical care and finances if they’re ill and incapacitated.
Some 52 percent of people age 55-plus don’t have a will or the other key estate planning documents that you might need during the pandemic, according to Caring.com.
Making a will — virtually
But here’s the hitch. With most states imposing stay-at-home orders and strict social distancing mandates, the mechanics of executing these legally binding documents is requiring some virtual soft-shoe.
That’s because in most states these important documents require adult (18 or older) witnesses and notarization, a procedure that generally takes place in person and with signatures in front of a notary to be valid.
Some states require witnesses who are “disinterested parties,” meaning they aren’t in line to inherit anything. Not easy to do when you’re probably hunkered down at home with members of your family to prevent the spread of the virus.
In Virginia, for example, the signing of a will must generally be witnessed by two competent persons, who also must sign the will in front of the testator, or person leaving the will. Although the Virginia law does not require a will to be notarized, attorneys usually recommend it.
Prior to the COVID-19 pandemic, 23 states already allowed remote online notarization in which a notary and signer are in different locations and use two-way audiovisual communication to securely execute electronic documents. These include Florida, Kentucky, Michigan, Minnesota, Montana, Nevada, Ohio, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin.
Given the pressure by residents anxious to prepare these estate planning documents, some states are now permitting remote online notarization for some of these documents, including Arizona, Iowa and Pennsylvania.
Others have made their laws more flexible during the pandemic. On April 7, for instance, New York Gov. Andrew Cuomo issued an executive order permitting remote witnessing of wills, powers of attorney, health care proxies, deeds and other documents. He had previously issued an order permitting video notarization, allowing New York residents who wish to execute new or updated wills, health care proxies or powers of attorney to do so without leaving home or admitting others to their home, provided they follow specific conditions, such as requiring that the videoconference be a direct communication between the person signing, the witnesses and the supervising attorney.
A nationwide solution could come in a bill introduced March 19 by Sens. Mark Warner (D-Va.) and Kevin Cramer (R-N.D.) that would allow remote online notarizations in any state, so people could conduct legal actions without compromising their social distancing practices. “Virginia has safely and securely allowed the use of remote notarizations for years,” Warner said in a press release. “At a time when most people should be staying at home, there’s no reason anyone should have to leave just to get notary services.”
The virtual estate consultation
Today, estate lawyers like Rubin are connecting with clients via videoconference services like Zoom or Skype. The basic estate documents clients typically want to review: a will to legally name who should inherit their property; a durable financial power of attorney that assigns another person to make financial decisions for them if they’re incapacitated; a health care power of attorney, along with a living will, to allow a specified individual to make health care decisions for them if they can’t do so for themselves; and the HIPAA authorization form to consent for someone else to access medical information from a health care provider.
“My assistant and paralegal are on my Zoom meetings with a client, and, when we’re ready to sign documents, my assistant and I will witness, and my paralegal will act as a notary,” Rubin said. “That said, lawyers, by nature, are conservative. My recommendation, so the documents aren’t challenged in court, is going to be once everything stabilizes, and we are back to something of normalcy, come into the office and let’s spend 15 minutes together. We’ll perform the normal execution ceremony that we would have performed if we could have been together.”