Estate Planning During the Covid 19 Pandemic

       Estate planning is best done at times of ease when there is no compelling reason to do so.  Now during the Covid 19 pandemic, here in California (and elsewhere), some people want to create, or update, their estate planning documents during the crisis. 

Normally, estate planning entails in person meetings with your attorney to discuss, review, and to sign, witness and notarize documents.  Since Governor Newsom’s stay at home order and social distancing order such meetings essentially became unavailable.  This is especially true for residents at skilled nursing facilities and assisted living homes who are prohibited from receiving any visitors. 

So how can California residents proceed with their estate planning during the pandemic?  With attorneys working from home, client communications are now done by phone and on-line meetings (such as zoom).  Documents can be drafted and sent to clients by email or facsimile for review and signing by clients.  While regular mail is still available it may mean the attorney making a trip to the post office.

The challenge for everyone is with executing the documents. Estate planning typically involves signing a trust and/or will, trust transfer deeds (to convey real property into a trust) powers of attorney for financial, property and legal affairs, and an advanced health care directive and HIPAA release.  Each has their own required manner of execution.

A trust, or an amendment to a trust, is only required to be signed by the settlor(s) and is not required to be notarized.  Notarization is simply the best and usual practice.  Often the drafting attorney is also a notary.  California, unlike some other states, does not allow online notarization where the notary interacts with the signor by means of a webcam. 

Signing a deed to convey title to real property into one’s trust, therefore, presents a challenge.  Notary services can be obtained at some essential businesses, for example a UPS Store.  Otherwise some mobile notaries, when facilitating real estate refinancing of mortgages and sales, are meeting clients on their porch and using both social distancing and hand sanitizers to minimize the risk.  The notary’s journal, the signor’s identification card, and documents to be signed are placed on a porch table and each person takes turns going to the table.

Fortunately signing the trust transfer deed can be delayed till after the pandemic.  The pledging of the real property by means of a declaration of trust assets and/or assignment of trust assets typically ensures that even if the settlor were to die or become incapacitated during the pandemic period that the successor trustee can later petition the court (once normal operations resume) for a court order to confirm the pledged real property (and other pledged assets) as belonging to the trust.  A successful petition means avoiding an otherwise unnecessary probate.

A will that is drafted by an attorney must be signed by the testator and witnessed by two disinterested witnesses.  Nowadays, the will signing can either take place with everyone staying 6 feet apart and using hand sanitizes (like the porch scenario), or can be witnessed remotely by webcam (in real time) and the witnesses can separately sign the witness attestation page.

Alternatively, a person can hand write a so-called “holographic” will to give specific assets (such as personal property), make monetary gifts, and to divide the rest of the estate.  The will should also name an executor and say whether the executor’s bond requirement is waived; a bond is an expense paid by the estate to safeguard the estate against any wrongful acts by the personal representative.

In California, Powers of Attorney, Advance Health Care Directives, and HIPAA releases, can all be witnessed by two disinterested persons who are not named in these documents.  That said, such documents are normally notarized but these are extraordinary times.

Anyone who wishes to proceed with estate planning may wish to call a qualified estate planning attorney and discuss how that attorney is handling such work.  They may also wish to call a UPS Store or a mobile notary to discuss notarization of deeds and trustee certifications of trust, as relevant.

Dennis A. Fordham, Attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at dennis@DennisFordhamLaw.com and 707-263-3235.