With the current health crisis requiring individuals to stay at home and practice social distancing, we have seen an increase in calls from our former and current clients about updating existing or executing new estate plans. Some of our clients, especially our health care clients, are on the front lines battling this disease and they want to be prepared for any outcome. Others work for essential businesses who deal with the public and are at increased risk for exposure to COVID-19.
While it may be unpleasant to think about getting your affairs in order during this emergency, it always better to plan for the worst and be prepared for any outcome. Failing to update your estate plan or not having one at all can have leave your loved ones with headaches. The law already provides a "default" for how your assets will pass after you die, but for some people, the law is not written in a way that would be desirable.
This post will look at what you need in order to successfully execute your Last Will & Testament, Healthcare Directive, or Durable Power of Attorney using video conferencing.
What You Need Prior to Creating or Updating a Plan Remotely
- Reliable Internet
You will want to confirm that you have access to a solid internet connection. A wired internet connection is best. Using WiFi can cause problems. WiFi goes out, it can be interrupted by the Microwave, and can have bandwidth issues (multiple members of the household are using it at one time, the WiFi can get slow).
If you must use WiFi, we recommend making sure that as many WiFi enabled devices are turned off as possible during the video conference itself.
- Video Conferencing Software
Next, you will want to download the app that the attorney who will be supervising the execution of the documents uses (Zoom, Teams, etc.). Our firm uses two apps, namely Microsoft Teams and legal industry specific video conference platform Legaler. We have tested both of these apps and have chosen them for their ease of use and security.
- Preparing Your Witnesses
You can pick your own witnesses, or we can provide witnesses for you. If you are unknown to us, you will have to show us a copy of your license during the video conference so we can confirm who you are.
- Scanning/Transmitting the Documents
The Governor's Executive Orders do not require that the documents be immediately signed by the witnesses. But lawyers live in a world of what-ifs. If for example, Will was witnessed and those two witnesses predecease the person making the Will. How will the probate court be able to prove that the Will was properly signed?
Therefore, it is necessary that you and the witnesses can scan or fax the signature pages to us so that we can put them in a fully integrated document. There are many apps for iPhone or Android devices that can covert a picture into a PDF (Camscanner, TurboScan, Scanner Pro are a few).
During the Will Execution Ceremony Itself
At the appointed time, a Teams or Legaler meeting will be launched. For security purposes, we use a virtual "waiting room" in Teams or Legaler so that we can admit the participants when we are ready to, and to protect against "Zoombombing."
From here, it proceeds as any other normal Will execution would. The witnesses will be asked if they agree to witness the signing of the Last Will & Testament. You will be asked to show your signature on the document.
The Testator (the person making the will) shall declare that the document they are signing is intended to be their Last Will & Testament.
- Do not change the language of the jurat on the notary or acknowledgement on any documents because the Executive Orders (EO) do not require it;
- The witnesses and the Testator should hold on to the wet ink signature pages;
- The EOs provide that the witnesses may sign an integrated the wet-ink original document within thirty days - this is highly highly recommended;
- The attorney should control the video conference through Zoom, Skype, Teams, or whatever platform. The attorney owes the client the duty of confidentiality, and the meeting should therefore be controlled by the attorney.
- Though not explicitly required for witnesses to a Will or a trust; the witnesses should be present in the State of New York during when witnessing the execution of an estate plan. This is unlike the notarization EO, which requires that the affiant affirm that they are in the New York at the time of signing.
- While there is no hard and fast rule for the stapling of wills, normally the Testator signs a Will that has already been stapled. We will likely provide the Testator with a stapled original.
If you would like to set up a virtual consultation to discuss creating new or updating existing estate planning documents, please do not hesitate to reach out to us. During the duration of the pandemic, email is best.