As reported in The Sunday Boston Globe, the threat of the COVID-19 pandemic along with either isolation at home or the need for essential workers to go out and risk becoming infected has prompted many Massachusetts residents to consider planning estates for the first time or to complete plans they may have started but let slide several years ago.
We’ve seen this as well, especially among doctors and other health care professionals on the front line who feel an increased urgency to get their plans in place. The difficulty in these cases is witnessing and notarizing estate planning instruments while maintaining proper social distancing. I described how we’ve done this in an earlier blog post.
We Need Virtual Notarization
We hope that the legislature will act soon to enact legislation permitting online witnessing and notarization, which is permitted in several other states. Unfortunately, the legislation has gotten bogged down as various constituencies have sought modifications. In New York, Gov. Andrew Cuomo issued an executive order authorizing online document execution during the pandemic. Perhaps Gov. Charlie Baker should do the same.
But Not All Documents Need to Be Notarized
In the meantime, we’ve been working on developing our own workarounds, as we’ve done before, including foregoing witnesses or notarization where appropriate. Here’s a situation Attorney Laura Goodman recently faced:
Her 93-year-old client wanted to amend her trust to reduce a granddaughter’s share of her estate. Her home had already been transferred to the trust. Attorney Goodman had no concern about her client’s capacity.
There’s no law that requires a trust or a trust amendment be notarized or witnessed. However, any document recorded at a registry of deeds must be notarized. We often prepare documents with language for notarization and lines for witnesses to sign both because they may have to be recorded in the future or simply to add an air of formality which will make others more likely to accept them.
In this case, Attorney Goodman did not anticipate any need to record the trust amendment, in part because the trust already held the client’s home, and while there’s a small chance the granddaughter would challenge the amendment, Attorney Goodman could always testify if necessary as to her confidence in her client’s capacity. So she prepared the trust amendment without places for a notary or witnesses to sign and she observed her client sign the amendment by video conference.
The alternatives appeared much less attractive. Given the vulnerability of older people to the virus, we didn’t want anyone from our office to meet with the client in-person. Given her age, we didn’t want to wait until the end of the pandemic to complete the amendment; it could easily take a year before we have a vaccine and all social distancing has ended.
In another blog post, we discussed ways adult children can assist their elder parents with their financial and legal matters during this difficult time. The need for social distancing can make this more difficult, whether new documents need to be prepared and signed or a trip to the bank or other financial institution is warranted. The bottom line, however, is that all of this is easier to accomplish in more normal times. We hope more clients of all ages will complete their estate planning once the pandemic has passed (but we’re here for you now, as well).