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Estate Planning in the Age of Covid-19 and Remote Notarization

Should I get my Estate Plan done during the Covid-19 Pandemic?

Never before has Estate Planning been more important.  The Covid-19 pandemic has brought the issue of mortality to the forefront of many people’s minds.  As a result, people have started thinking about taking care of their Estate Plan to make sure their final wishes for distribution of their assets are in place as well as appointing agents to make medical decisions should they become incapacitated.  With very few exceptions, it is essential for all people to get their Estate Planning documents in place given the unknown threat of Covid-19 lurking everywhere.

Huffington Post just released an article written by Dr. Asha Shajahan who is a primary care physician in metro Detroit treating inpatient and outpatient COVID-19 patients as well as homeless people who may have the virus.  She discusses the difficulty she is seeing for those without proper advance directives right now.  Read the article here.

Can I get my Estate Plan done during the Covid-19 Pandemic?

The Governor’s Emergency Order 17 (Order) has closed down all non-essential businesses.  Pursuant to the list of essential workers, many lawyers are considered essential workers under the Other Community-Based Essential Functions section of the list (list).  As such, lawyers are still able to produce Estate Planning documents.  The issue with Estate Planning during Covid-19 stems from the protocols for social distancing, which make it difficult to get an Estate Plan executed in the traditional manner.  Given the difficulties presented by social distancing, the Governor has put in place Emergency Order 11 (Order) which allows for remote notarization under strict guidelines.  This Order allows attorneys to get creative in getting Estate Planning documents executed.

What difficulties may I have getting my Estate Plan done during the Covid-19 Pandemic?

As noted above, remote notarization allows attorneys to get most Estate Planning documents executed without the need to be in the presence of their Clients.  The only sticky point comes when getting a Will executed.  Pursuant to RSA 551:2, Wills must be signed in the presence of two witnesses, who must also sign the Will contemporaneously with the Testator or Testatrix (the person whose Will is being executed).  The requirement for witnesses to be in the presence of the Testator or Testatrix presents great difficulty due to the social distancing protocols.  It has been difficult for Clients to be able to obtain two disinterested witnesses to attend the Will signing, thus obstructing the ability to execute the Client’s plan remotely.  In this case, the ability to execute documents will depend greatly on your attorney’s protocols during the Covid-19 pandemic.  Some attorneys are refusing to place themselves at risk to assist in getting Wills executed, but others are finding ways to get your Estate Plan executed safely.

What does an Estate Plan execution look like during the Covid-19 Pandemic?

Morneau Law is providing our Clients with a number of options with regard to getting your Estate Plan executed.  As noted above, the need for two witnesses when signing a Will presents a fly in the ointment with regard to remote notarization.  We offer our Clients the ability to execute their Estate Plan completely remotely as long as they are able to produce two (2) disinterested witnesses to attend the execution.  If our Clients cannot produce witnesses, we have also been offering picnic table signings outside with our team serving as witnesses.  We also offer the option of “drive-by” signings where everyone remains in their cars during the signing.  If weather gets in the way, as a last resort, we will do in office signings while observing the social distancing guidelines.  All parties are required to wear masks and gloves and to stay six (6) feet apart during the execution.

We serve the Greater Nashua area and are here to help.  To speak with one of our experienced attorneys to discuss how we can help you meet your Estate Planning goals, please click here to contact us or call us today at (603) 943-5647.  Initial consults for new Estate Plans are complimentary.

Sarah A. Paris