There's nothing like a pandemic to realize your mortality. Attorneys who work on trusts and estates are reporting a surge in inquiries.
If you're looking to update or create a will, or you're just trying to get a grasp of power of attorney and other legal matters, here are some issues to consider.
Of greatest concern to clients is figuring out how they can get their documents signed and properly executed, said Jason Torres of Torres Law Office, a Rochester-based boutique law firm which specializes in providing trusts and estates.
In most cases, clients will sign their wills, powers of attorney and health care proxies in office in the presence of their attorney. This ensures that all the proper formalities are satisfied.
Given social distancing and nonessential business requirements, Torres is working remotely while clients are quarantined at home. Gov. Cuomo has signed executive orders that provide guidelines for both remote notarization and witnessing of documents.
"Personally, I have also found alternative ways to have clients sign documents in my presence while ensuring both their and my safety and well-being," Torres said. "I have witnessed clients sign documents at their kitchen tables through sliding glass doors, on benches in office parks, and in their cars with their windows rolled up while we talk over the phone."
Torres' firm continues to receive calls from new clients, and members of the firm have been conducting initial meetings via video or audio conferencing. The current environment has also given existing clients a reason and the time to revisit their current documents and make sure they still reflect their wishes.
Most importantly, people should recognize the risks of not having a will or power of attorney in place, Torres said.
"Ultimately, these documents allow you to make your own decisions on how things should be handled and by whom," he said.
The options for those who do not have a power of attorney are limited, Torres noted. If a client needs an agent to act on his or her behalf in connection with a property or financial matter, the power of attorney can provide that authority. If a power of attorney is not in place, the family may need to petition the court to have a guardian appointed for the individual who needs assistance. A guardianship proceeding is significantly more costly than having a power of attorney prepared and can be quite disruptive to the family, Torres said.
Educate yourself, Torres said. There are myriad sources for learning more about estate planning, including a conversation with an attorney who practices in this area. The more you know, the more likely you are to ask the right questions.
Wills can be updated very quickly, either by revising an original will or having the attorney prepare a simple codicil, an addition, to the will. The real issue is whether the will can be properly executed, Torres said. Those affected by the pandemic are likely hospitalized and/or in quarantine.
Cuomo’s executive order provided the necessary guidance for remote witnessing, allowing the coordination of a signing with the necessary witnesses and notary. The trickiest part can be that the witnesses need to receive a copy of the signature pages the client signed on the same day, which works only if the client has the ability to scan or take a picture of the document and email it to the witnesses.
If you are still working with the same attorney and he or she has the ability to update your documents via a word processing program, this can be the easiest and most cost-effective way to update your will, depending on the extent of the changes, Torres said.
Alternatively, the attorney can prepare a codicil to your existing will. The codicil changes certain provisions of your will but leaves the balance of it the same. Depending on the necessary updates, it may be easier to draft a new will versus making sure all of the necessary changes are made in the codicil.
A will is a good way to make known to your family and friends your last intentions for your property, said estate litigator Peter Glennon of Glennon Law Firm in Pittsford. If you don’t have a will, then a state statute will dictate what happens to your property. In a will you can even list who gets what piece of jewelry or which baseball card collection. If you have young children, you may also provide in your will who you would like to be their guardian if both parents died.
There are other actions people can take now, such as ensuring that a proper beneficiary is listed on retirement accounts or other investment accounts, Glennon said.
You can update your back accounts to identify to whom the account should be payable upon your death. This is usually known as POD or Payable on Death.