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 soletrustee andsolebeneficiary.
During COVID-19
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)
What To Do After
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.