Estate Planning in the Time of COVID-19

Written by Rachel Ronca and Seth W. Krasilovsky

Preparing and properly executing estate planning documents requires much care and consideration under “normal” circumstances.  The COVID-19 pandemic, with its attendant shelter-at-home orders and social distancing guidelines, has made the estate planning process a logistically complicated necessity.  Under the California Probate Code, the execution of estate planning documents requires a combination of notarization and witnessing.  How can this be accomplished when non‑essential businesses are closed or working off‑site, and people are increasingly cautious of interactions outside of their homes?  The Trusts & Estates department at MSK is prepared to assist you through the preparation and execution of your estate planning documents, allowing you peace of mind in these uncertain and difficult times.

It is now more critical than ever to review your estate planning documents and ensure they reflect your wishes.  If you do not have estate planning documents in place, now is the time to have them prepared.  Properly prepared and executed estate planning documents ensure that your affairs, both financial and medical, are managed according to your wishes in the event of your incapacity or death.  Estate planning removes the uncertainty of what may happen to your family, including minor children, and your assets if and when you are unable to care for and manage them yourself.

At MSK, our in-office consultations with clients have transitioned seamlessly into videoconferences and telephonic meetings.  Initial drafts are sent to clients by email, U.S. mail, or FedEx for their review, and our attorneys are readily available by email and telephone to answer all questions.  Our estate planning document execution process has been purposely modified at this time to account for and accommodate individualized preferences, while of course, continuing to comply with all relevant legal requirements.

The execution of a formal Will, for example, requires two witnesses and need not be notarized, whereas other documents, including those listed below, typically require notarization or witnessing: Durable Powers of Attorney (also known as financial powers of attorney), Advance Health Care Directives (also known as Durable Powers of Attorney for Health Care), HIPAA Authorizations, Certifications of Trust, Nominations of Conservators, and Nominations of Guardians.  Finally, although Declarations of Trust (also referred to as living trusts) are often notarized as a formality, execution of Declarations of Trust require neither witnesses nor notarization.

The physical barriers posed by the shelter-at-home orders and social distancing guidelines have made it difficult to locate notaries and witnesses who are willing to be in the physical presence of the signer to verify documents according to the legal requirements.  To remedy this fact, states across the nation have begun adopting emergency remote online notarization (“RON”) orders, which permit online notarizations by videoconferencing and ease the burden of physical presence requirements.  New York State, for example, adopted an emergency RON which allows, temporarily, notarizations via videoconferencing.  As of the date of this post, California has not adopted an emergency RON order, however, Californians may rely upon emergency RON orders of other states under California Civil Code section 1189(b).  This section provides that “any certificate of acknowledgment” (also known as a notarization) taken in another state shall be sufficient in California if it is taken in accordance with the law of the state where the acknowledgment is made.  In other words, Californians who wish to have their estate planning documents notarized without inviting a traveling notary into their homes, may obtain the notarial services of a notary who is certified in a state that permits RON.

A number of online notary public providers have established themselves in the RON field, including but not limited to NotaryCam, Notarize, and Live Notaries.  Such providers advertise the security measures taken in their notarization processes, which, in the estate planning field, is essential, as most of the documents are highly personal and confidential by nature.

If, however, a client does not wish to handle the execution of their estate planning documents via a RON service, traveling notaries may be relied upon.  While the availability of traveling notaries has reduced significantly in recent weeks, there remain a handful whom are available to notarize documents at clients’ homes or in other preferred locations, while also taking the utmost care in minimizing health risks to the participants.  Alternatively, document executions may be conducted via one of the methods described below, with the Trust & Estates Department at MSK guiding clients based on their personal preferences and unique situations.

Separate and distinct from the California notarization requirements, the California witnessing requirement applies to all non-holographic Wills, and may apply to Advance Health Care Directives as the alternative to notarization.  Under California Probate Code section 6110(c)(1), two disinterested witnesses must be within the line of sight of a testator while they observe the testator executing his or her Will.  All three parties must be within the physical presence of each other at the time of signing.  The witnesses must be disinterested parties, meaning they cannot have a beneficial interest in the testator’s Will or Trust.

As most individuals are sheltering-in-place with family members (i.e., persons who would be considered interested witnesses), it has become difficult to locate disinterested witnesses.  In general, however, if a traveling notary is hired to notarize other documents, that individual could also serve as one of the disinterested witnesses.  A willing neighbor could serve as the second witness if all parties maintain social distancing.  Another option is to prepare a holographic Will, which must be entirely written in the testator’s handwriting and need not be executed in front of witnesses.  Albeit, a holographic Will should be prepared with extreme caution and with the advice of an attorney so as to ensure that it does not contradict any other estate planning documents.  Alternatively, some clients might wish to engage in a “drive‑up” signing, whereby the necessary parties execute, notarize, and witness estate planning documents while the client remains in his or her vehicle and all parties taking the necessary protective measures, such as using their own pens, wearing protective gear, and maintaining social distancing.

Finally, there is a caveat to the Will witnessing requirement under Probate Code section 6110(c)(2).  This section provides that a Will might still be valid if there is “clear and convincing evidence” to show that, at the time the Will was executed, the testator intended it to constitute his or her Will.  This section should not be relied upon unless all other methods are unavailable, as it may invite litigation upon the testator’s death.

Properly executing your estate planning documents is more important than ever.  MSK has the legal expertise, tools, and resources necessary to engage you in the collaborative preparation of your estate planning documents and ensure that your documents are executed in compliance with California laws.  Please reach out to our Trusts & Estates department with any questions and to start the estate planning process today.

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