The COVID-19 pandemic has altered our daily lives. Social distancing measures advanced by the CDC (i.e., maintaining six feet of distance, no group gatherings, wearing masks outside, setting aside documents traveling in the mail for 2-3 days to allow the virus to die on surfaces) are designed to slow the spread of the virus by flattening the curve and keep us safe. However, these restrictions seem to frustrate the formal ways in which estate planning documents are executed under normal circumstances (i.e., in the presence of a notary and multiple witnesses).
Right now, it is especially important to have proper estate planning documents to control the disposition of assets at death and to enable others to make our financial and medical decisions if we are unable. There are currently two bills pending in New Jersey that, if enacted, will allow for remote notarization of certain documents in certain circumstances. However, as drafted, none of these bills:
With this in mind, it is important to address how we can safely execute estate planning documents while practicing social distancing and alternatives for the execution of wills if we are unable to follow the typically required execution formalities.
Under New Jersey law, Wills and Advance Directives for Health Care are valid if executed in the presence of two witnesses. (It is permitted, though not preferable under normal circumstances, for the witnesses to a will execution to be beneficiaries of the will.) During the pandemic, where possible, signing these documents should take place in large open spaces (i.e., a large conference room or outside in a backyard) with participants staying six feet apart. If in the same space, each participant should wear gloves and masks as well as use separate pens. If possible, only one person should handle the documents. Surfaces where the signings take place should be disinfected before and after each signing. It is important that participants are within sight and sound range of the person for whom the document is being prepared. To this end, window-separated signings and porch signings are also viable options.
If someone is sick or otherwise vulnerable and cannot be around others, two alternatives exist for wills under New Jersey, though, unlike a will executed in compliance with the statutory formalities, the Superior Court, as opposed to the Surrogate, must admit the document to probate and these options are generally more susceptible to challenge.
The first option is what was traditionally referred to as a “holographic will” – documents that are unwitnessed (or witnessed by one person only) and handwritten and signed by the testator. To be valid, the material terms and signature must be in the testator’s handwriting. If these requirements are met and the proponent of the document can prove that the testator intended the document to be his or her will, the Superior Court can admit the document to probate. The proponent would have to file a proceeding in Superior Court on notice to all those with an interest in the purported holographic will, as well as anyone who does not have an interest but who would take under intestacy if the document were not admitted to probate.
The other option, discussed in a prior post, “When a Copy or Unsigned Will May Be Good Enough,” is referred to as a “writing intended as a will.” Such a document need not be in the testator’s handwriting, signed, or witnessed, but the proponent of the document must prove by the more stringent “clear and convincing” standard that the testator intended the document to be his or her last will. Under current circumstances, therefore, and if the testator is otherwise limited for medical reasons, it may be advisable for an attorney to create a document, review the terms telephonically with the testator (who ideally would have the document in front of him or her as well), and obtain the testator’s verbal consent to the terms. This type of procedure may help to create the kind of factual record needed to establish that the testator truly intended the document prepared by the attorney to be his or her will and that the testator was only prevented from executing it by the pandemic. The closer the attorney and client can approximate the standard will execution procedure, the better, so the attorney’s ability to view the client via FaceTime, Skype, Zoom, or other electronic means should also be considered. Note, however, that under current law a will may not be witnessed in this fashion. Further, a testator should only rely on this or a similar procedure after consultation with an attorney and should ensure that, when it is safe again to do so, the will is properly and formally executed.
Finally, under New Jersey law, Powers of Attorney must be executed in the presence of a notary. While it may temporarily be difficult to find a notary, banks and businesses that accept packages (such as UPS or FedEx) typically have notaries on staff.
The current crisis is posing some unique challenges, but there may be workable, even if not ideal, solutions in many cases. If you have any questions about this post or any other related matters, please feel free to contact one of our Estate Planning and Administration & Wealth Preservation attorneys. For other topics related to the COVID-19 illness, visit our Coronavirus Thought Leadership Connection.
The information contained in this post may not reflect the most current developments, as the subject matter is extremely fluid and constantly changing. Please continue to monitor this site for ongoing developments. Readers are also cautioned against taking any action based on information contained herein without first seeking advice from professional legal counsel.