Estate Planning in the Time of COVID-19

Ruder Ware

In the midst of the global COVID-19 pandemic, many people are stocking up on food and other supplies to get them through prolonged periods of quarantine and government-ordered shutdowns.  Schools are closed and in some locations, businesses are also closing doors to visitors.  Yet people are concerned about planning for a potential incapacity or even possible death.  So what can be done during this time when it is difficult, if not impossible, to meet face-to-face with your attorney?

Ruder Ware has technological capabilities that allow us to easily communicate with our clients from afar.  We can use video or telephone conference to meet with our clients to design their estate plan.  Yet, what about signing those estate planning documents?  How can that be done when people are not meeting face-to-face with witnesses and a notary?  These formalities guarantee the authenticity of your documents and limit the opportunity for disgruntled beneficiaries or other interested individuals to challenge the documents in the future.  Further, a notary is required on any document that will be recorded in the Register of Deeds’ office.

In Wisconsin, many estate planning documents can be signed without witnesses and a notary even though it is not our normal recommendation.  Given current circumstances, we recommend that our clients sign their documents without witnesses and a notary, yet not all documents are able to be signed.  When our community recovers from COVID-19 and normalcy returns, we recommend that our clients re-sign the documents with witnesses and a notary.

Many people use revocable trusts to transfer their assets upon their deaths.  A trust does not need to be witnessed or notarized to be valid in Wisconsin.  In addition, for those individuals who already have a trust, the document can be amended or modified without witnesses or a notary.

Revocable trusts are a popular estate planning tool because they can be used to avoid probate, which is the court process of transferring assets upon death.  However, simply having a trust does not avoid probate.  In order to avoid probate, your assets need to be transferred to the trust during lifetime or upon death by a non-probate transfer document:

  • For married couples, marital property agreements can be used to transfer assets to a revocable trust upon death without probate. A marital property agreement also does not need to be notarized or witnessed to be valid but does need to be notarized if it will be used to transfer real estate upon death.
  • For unmarried individuals, you also may use a document to transfer your assets to a revocable trust upon death without probate. Witnesses and a notary also are not required to sign this document, but again, the document needs to be notarized if it will be used to transfer real estate upon death.
  • Anyone can avoid probate by transferring assets to a trust during their lifetime.  If your attorney is familiar with your signature, he or she may authenticate your signature on a deed that may be recorded in the Register of Deeds’ office without being physically present when you sign the deed.  Bank and brokerage accounts are easy to re-title in the name of a trust, and beneficiary designation forms may be completed for life insurance policies and retirement accounts, generally without any need for witnesses or a notary.

Another important estate planning document that can be executed without witnesses or a notary is a durable power of attorney for finances and property.  If you become incapacitated, the agent that you have appointed in the document is able to carry out your financial affairs without the need for a court-appointed guardian.  This document saves time, expense, and anxiety during a time that is already stressful for your loved ones.

What documents cannot be signed without a notary and witnesses?  A will cannot be signed without two witnesses and a notary.  However, in most circumstances, a will is not necessary if you have a trust and assets have been transferred to the trust during your lifetime or will be transferred to the trust by a non-probate transfer document upon your death.  You also need two witnesses to sign a health care power of attorney.

There is much dialogue occurring between attorneys and lawmakers regarding the execution of estate planning documents by electronic means during this time.  These discussions may soon result in changes to the law and allow us to sign all estate planning documents remotely.  Stay tuned during this time of rapid developments and we will be sure to alert you to any changes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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