Will Signing During COVID-19
Requirements
In Illinois
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).
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 COVID-19
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.
Some options:
- 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.
What To Do After
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.