Executing Estate Planning Documents During COVID-19
Michael Brennan • April 23, 2020
Stay at Home and Shelter in Place orders across the country have created challenges for those wishing to finalize estate plans. Our simple guide outlines exactly what is required for successfully executing specific estate planning documents and some options for getting it done.
Wills
Wills are challenging because they require witnesses . But there may be some options.To be valid a last will and testament must:
- be in writing,
- signed by the person making the will (or by some person in his presence and by his direction) and
- be attested in the presence of the testator by 2 witnesses. (See 755 ILCS 5/4-3).
Generally, the witnesses should typically be "disinterested" so using family members or other beneficiaries is not advisable. Notarization is not required in Illinois for a will to be valid. However, by having the document notarized with an appropriate attestation clause, or using a separate notarized affidavit (known commonly as a "self-proving" will), a presumption that the will is valid is created and some potential hiccups when it comes time to probate the will can be avoided (755 ILCS 5/6-4).
Similarly, in Wisconsin a will must be:
- signed by the person making the will or by a person signing at their direction, in his presence,
- signed by at least 2 witnesses who signed within a reasonable time after the person making the will signed, and in their conscious presence , or explicitly acknowledged their signature or that the document is his will.
Of note, each of the witnesses may witness at different times. A notary is not required in Wisconsin, however, similar to Illinois, a "self proving" will can be created is an affidavit is executed by the person making the will and the witnesses and notarized. (See Wisc. Stat 853.04).
During the pandemic, think about using a living trust.
One of the most efficient ways to ensure that a comprehensive plan can be put in place during the pandemic with estate plan documents that are executed in compliance with applicable law is to use a living trust as the main estate plan instrument instead of a will. Doing so creates an efficient mechanism to ensure the majority of your assets are going where you'd like. See trust execution options here
to determine if that may be the right solution for you.
Execute your will now and wait for the Stay-At-Home Order to be lifted to complete a self-proof affidavit.
Remember that a will does not legally need to be notarized to be valid. Figuring out a way to sign the will with two witnesses should be of primary concern.
Here are some non-traditional options to consider for getting your will finalized:
- Debate the feasibility of using video conferencing software. It's important to discuss the potential ramifications with your attorney, but in light of the current situation it may be a viable option.
- Create a setup out on your driveway. Bring a table outside and ask the neighbors to assist in witnessing the will. Social distancing guidelines can be effectively practiced by signing one at a time and then stepping back from the table to allow the others to sign.
- Option 2 can be used along with a mobile notary if one is available and government orders permit it to also make the will self proving.
Once this has blown over and things begin to return to normal, if you choose to execute your will by video conference it may be a good idea to re-execute the will in the physical presence of your witnesses as well as have a notary present to complete the self proving process. If you chose to sign in the physical presence of your witnesses, then gathering with them and a notary to complete the self-proof affidavit may be smart. If you chose to use a living trust as the keystone of your estate plan, then you should have your attorney draft up a simple will known as a "pour over will" which can be used to clean up any loose ends outside of the trust.
Trusts
If properly funded, trusts are tremendously flexible instruments and can be used for everything from appointing an individual that can manage your assets if you are incapacitated (similar to an agent under a power of attorney for finances), ensuring assets pass to your preferred beneficiaries upon your death, and even provide for a way to manage an inheritance for minor children or young adults until they are mature enough to manage it for themselves.
A trust in Illinois does not need to be witnessed and technically does not even need to be notarized, though notarizing the trust is good practice (See 760 ILCS/Art. 4 and Wisc Stat 701.0402). To successfully create a trust, the following requirements must be met:
- the person creating the trust must not be incapacitated and must indicate an intention to create a trust,
- there must be a definite beneficiary,
- the trustee must have duties to perform, and
- the same person cannot be the sole trustee and sole beneficiary.
Here's What To Do During The Stay-At-Home Order
Working with your attorney to get your living trust drafted up and funded during the pandemic may be the simplest and most efficient option for putting in place a fairly comprehensive plan. During the pandemic:
- Have your attorney draft up a "trust agreement" for you to reflect your wishes. While oral trusts are technically valid, their existence is much more challenging to prove.
- Sign your trust agreement.
- Work with your attorney to fund your trust. Modifying beneficiary designations on investment accounts, retirement accounts and life insurance is a great first step that can be accomplished easily through access to your accounts online.
- Currently, virtual notarial acts are not permitted in Wisconsin or Illinois on estate documents (however, this may change), however if it's a concern, it may be worth looking into a mobile notary that can travel to you. With the weather getting nicer outside, having the notary witness through a storm door, or even setting up a table on the driveway where you and the notary can step up to take turns signing may be feasible (Of course, be sure to follow governmental instructions relating to stay at home orders and essential business operations)
Once things begin to return to "normal" ensure that the trust is getting completely funded. This may include working with your banker to name transfer on death beneficiaries on accounts or turn them into trust accounts and tying up any loose ends.
Even though trusts do not need to be notarized to be valid, having your trust agreement notarized once the stay at home order is lifted is a good idea. Financial institutions may have different instructions on how to deal with trusts and the reality is that all financial professionals may not be familiar with trust requirements and may prefer to see a notarized document.
Another idea raised by some legal professionals is to have your attorney draft up an affidavit explaining that the trust was created during the pandemic and stay at home order and that is the reason for the notary acknowledgement subsequent top the signing of the trust agreement.
Powers of Attorney for Finances and Healthcare
There are two common types of directives naming an agent that is permitted to act on your behalf if you're incapacitated or otherwise unable to act. They may be known by various names depending on location, but typically they can commonly be referred to as a power of attorney for healthcare and a power of attorney for property. As the names suggest, each is used to name an agent that may act on your behalf in regard to specific actions related to your healthcare or financial-related decisions.
There are two common types of directives naming an agent that is permitted to act on your behalf if you're incapacitated or otherwise unable to act. They may be known by various names depending on location, but typically they can commonly be referred to as a power of attorney for healthcare and a power of attorney for property. As the names suggest, each is used to name an agent that may act on your behalf in regard to specific actions related to your healthcare or financial-related decisions.
To be valid in Illinois a power of attorney for property must be:
- Signed
- Witnessed by at least one additional individual
- Notarized
You must personally appear in front of the notary and the witness and acknowledge signing the power of attorney. So, while the language of the statute does not require you to sign in front of them, generally it is preferred.
Powers of Attorney for Healthcare can take various forms, but most commonly, the statutory short form power of attorney contained in 755 ILCS 45 are used. To be valid they must be:
- Signed
- Witnessed by at least one other person
In Wisconsin, to be valid a POA for finances and property must be signed. That's it! (See Wisc Stat 244.05).
With that said, in reality you're going to have a tremendously tough time getting a financial institution to acknowledge it as valid unless it is also notarized.
A valid Wisconsin Power of Attorney for Healthcare must be:
- Signed and dated in the presence of two witnesses
- Signed by the two witnesses (See Wisc Stat 155.10)
During the Lock-down Here Are Some Options
Powers of Attorney should be a priority to get fully executed during the pandemic because they are more likely than other estate planning documents to actually have some applicability. In the event you get sick, it's important to ensure that someone can manage your affairs in your absence.
Some options to get things signed that don't require a notary
(i.e. Illinois and Wisconsin POAs for Healthcare):
- Create a setup out on your driveway. Bring a table outside and ask the neighbors to assist in witnessing the power of attorney. Social distancing guidelines can be effectively practiced by signing one at a time and then stepping back from the table to allow the others to sign.
- If it's essential that you make a trip to the grocery store, think about asking your cashier to sign as a witness (just be sure that they're at least 18).
If the document requires a notary
(Financial POAs):
- Look into a mobile notary if one is available and government orders permit it. Practice safe social distancing by using the driveway setup.
- A potential substitute to a financial POA is to ensure your living trust is properly funded and owns some form of liquid account (a trust checking account, for example) which your agent may access to satisfy any financial obligations (bills, etc.) that need to be taken care of in your absence.
- In Illinois, if access to a notary is impossible, at least sign your power of attorney. Barking up the chain at a financial institution to get it to honor a non-notarized power of attorney may be possible if it becomes absolutely necessary.
Once Stay-at-Home Orders are lifted it's important to ensure that anything which may have not been witnessed and notarized (as may be required) gets completed.
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