ESTATE PLANNING DURING THE PANDEMIC CRISIS
/The recent spread of COVID-19 made many people thinking about estate planning. If you already have an estate plan, it is a good idea to review and update it. If you do not, it is a good idea to start with a will. While it may be unpleasant to contemplate one’s death, it is crucial to have a will in place to determine what will happen with one’s family and assets.
People tend to think that wills are only for wealthy or for elderly people, but they are not. As a young man of 43, who was fit and well with no pre-existing health conditions, asked himself, during his stay in the hospital on maximum oxygen battling the virus, why he did not write a will as his fiancée suggested.[1]
WHY DO YOU NEED A WILL?
When a member of one’s family dies there’s a lot of emotion involved, and wills can make things easier and help to achieve several objectives. The testator (person making the will) decides who would receive what property and when they would receive it. The testator appoints a trusted person to be an executor to manage the estate. If the testator has minor children, he or she can select a guardian(s) for them. Further, the testator can decide what to do with a family business, or what charities he or she wants to support.
HOW TO MAKE A WILL?
Traditionally, a valid will must be:
(1) in writing;
(2) signed by the testator (or in the testator's name by another at the testator's request and in the testator's conscious presence); and
(3) either (A) signed by two individuals each of whom witnessed the signing of the will or the testator's acknowledgment of the testator's signature, or (B) acknowledged before a notary public.
In New York, the will must be signed and acknowledged before two witnesses. Although, New York does not require the will to be notarized to make it legal, it allows to make the will "self-proving". For a will to be a “self-proving” one the witnesses must sign a self-proving affidavit before notary. A self-proving affidavit form is a legal document that can be used as an alternative to a witness providing live testimony in a probate proceeding.
Amid the COVID-19 crisis, many states pass laws authorizing remote online notarizations. New York Governor Andrew Cuomo also signed an executive order allowing for documents to be notarized virtually using audio-video technology. The order was modified and extended to August 05, 2020.
WHAT ABOUT A LIVING WILL?
A living will is a written statement of your specific health care wishes in the event you become incapacitated. Due to Covid-19 concerns, we recommend you have one.
WHAT ABOUT A REVOCABLE/LIVING TRUST?
You may want to consider a revocable trust. A revocable trust may avoid probate but is similar to the Will with respect to leaving your assets at death. Probate is the act of going to court to validate the Will and to determine who gets what.
WHAT ABOUT PAYMENT OR TRANSFER ON DEATH FORMS?
We advise all our clients to ensure their POD and TOD forms properly reflect their intent. These forms allow a bank to transfer a bank account to the named beneficiary without going to probate.
CAN I WAIT? WHY DO IT NOW?
You can certainly wait, but the future is unpredictable. Also, we recommend our clients to take advantage of remote notarization. This will limit contacts regarding Covid-19.
During these difficult times our firm is ready to support you and assist with the preparation of the wills, living wills, health care proxies and other estate documents.
[1] Tui Benjamin, “Dad being treated for coronavirus heard patient crying out for family as he died alone”, Mirror, April 7, 2020. See at https://www.mirror.co.uk/news/uk-news/dad-being-treated-coronavirus-heard-21829732