Estate Planning During COVID-19: Easing Will Formalities to Allow Virtual Execution

By Bailey D. Barnes.

Barnes is a second-year student at The University of Tennessee College of Law where he serves as Managing Editor of the Tennessee Law Review. Prior to law school, Mr. Barnes earned a master’s degree in United States History.

Introduction

As the novel coronavirus, or COVID-19, continues to cause devastation and disrupt everyday life in the United States, it is important that individuals—particularly those in hospitals, nursing homes, and long-term care facilities—are able to have access to estate planning services from licensed attorneys.1 During this period of unprecedented restrictions on travel and physical contact, the law must be agile and adapt to ensure necessary services are still accessible to the clients who need them. Accordingly, this article argues that states should immediately consider temporarily waiving certain provisions of their respective probate codes that require face-to-face formalities for the execution of wills during this crisis. This temporary waiver should at least apply in situations where visitations by attorneys to long-term care facilities would place residents, healthcare personnel, and the lawyers at risk.

Recent CDC COVID-19 Guidance Makes Estate Planning More Difficult

The Centers for Disease Control and Prevention (CDC), recognizing the communal nature of nursing homes and similar facilities, as well as the typically elderly or otherwise at-risk populations cared for there, has issued guidance to long-term care facilities to “restrict all visitation except for certain compassionate care situations, such as end of life situations.”2 In addition to the CDC’s guidelines, the President’s Coronavirus Guidelines for America echoed, “DO NOT VISIT nursing homes or retirement or long-term care facilities unless to provide critical assistance.”4 Meanwhile, Kentucky Governor Andy Beshear limited long-term care facility visits to family members visiting patients receiving end-of-life care, and New York Governor Andrew Cuomo similarly limited access.5 With these restrictions in place, it will undoubtedly be difficult for residents to execute wills and other necessary estate planning documents. For many of the elderly residents at long-term care facilities, access to licensed attorneys for estate planning is of significant importance. Unfortunately, the laws of many states require either a notary or witnesses, or both, to attest to the formalities of a will’s execution in person.6 Because these statutes often dictate that multiple people interact in person, not virtually or by telephone, to execute a will, many residents seeking wills may be forced to either draft holographic wills, if able, or continue not to have a will and risk intestacy.

Easing Will Formalities to Ensure Estate Planning Access

Governors and legislators should promptly contemplate easing the formalities to execute a will to allow for virtual execution through Skype, FaceTime, Zoom, or other similar video conferencing services, as well as possibly via telephone call. Some states have already allowed for remote notarizations, though this does not remedy issues in some states that require witnesses in addition to a notary to execute a will.7 Consequently, states, or Congress, should take immediate action to provide for temporary less-than-strict compliance with the statutory formalities of executing wills to allow witnesses, notaries, attorneys, and clients to execute wills via video conference or telephone. This will ensure residents in long-term care facilities who may not have visitors still receive access to estate planning.

  1. See Jessica Holdman, From Wills to Home Sales, SC Lawyers Are Asking for Emergency Remote Notary Measures, Post & Courier (Mar. 26, 2020), https://www.postandcourier.com/health/covid19/from-wills-to-home-sales-sc-lawyers-are-asking-for/article_fbdbb67a-6d11-11ea-9a37-e31434f3d0e8.html [https://perma.cc/95M2-ZQDD]; see also Susan B. Garland, What to Know About Making a Will in the Age of Coronavirus, N.Y. Times (Mar. 26, 2020), https://www.nytimes.com/article/what-is-a-will-and-how-to-make-one.html [https://perma.cc/5QJF-JL8Z].
  2. Preparing for COVID-19: Long-Term Care Facilities, Nursing Homes, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/prevent-spread-in-long-term-care-facilities.html#cases-in-community [https://perma.cc/N5YC-5B3U].
  4. The President’s Coronavirus Guidelines for America: 15 Days to Slow the Spread, https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-guidance_8.5×11

    _315PM.pdf [https://perma.cc/R8EV-FXGJ]. Moreover, state governors have issued executive orders requiring similar restrictions. For instance, in Tennessee, Governor Bill Lee mandated that visits to nursing homes, retirement homes, assisted living, and other long-term care facilities be for “essential care only.”3Gov. Bill Lee Signs Executive Order Mandating Alternative Business Models for Restaurants and Gyms, Lifts Alcohol Regulations, Tenn. Off. Governor (Mar. 22, 2020), https://www.tn.gov/governor/news/2020/3/22/gov–bill-lee-signs-executive-order-mandating-alternative-business-models-for-restaurants-and-gyms–lifts-alcohol-regulations.html [https://perma.cc/73G6-DBZL].

  5. Tom Dinki, New York State Mandates Nursing Homes Ban Visitors Due to Coronavirus, WBFO NPR (Mar. 12, 2020), https://news.wbfo.org/post/new-york-state-mandates-nursing-homes-ban-visitors-due-coronavirus [https://perma.cc/R2BM-SKCY]; Bruce Schreiner, Beshear Calls on Kentucky Nursing Homes to Restrict Visitors, AP News (Mar. 10, 2020), https://apnews.com/0435325831fbc0f22cf97b590177e61a [https://perma.cc/F8R2-DKLZ].
  6. See generally 50 State Statutory Surveys: Trusts and Estates: Estate Planning: Wills, 0160 Surveys 7 (2016) (providing the list of state statutes dealing with will execution).
  7. States Take Emergency Action on Remote Notarization and Signers’ ID, Notary Bull. (Mar. 25, 2020), https://www.nationalnotary.org/notary-bulletin/blog/2020/03/states-emergency-action-remote-notarization [https://perma.cc/Z7H7-9N2K]