EXECUTING ESTATE PLANNING DOCUMENTS DURING THE PANDEMIC

How do you go about signing documents during this time of social distancing and self-isolation?  In Massachusetts, a will be must in writing and signed by the Testator in the presence of two credible disinterested witnesses.  Although notarization is not necessary, it simplifies the probate process.    When signed by by the Testator and two witnesses in front of a notary, the will is self-proving.  A self-proving will eliminates the need for the witnesses to come to court and testify about the will being signed after the Testator has died. If you are unable to access a Notary during this time, a valid Will can still be executed without a Self-Proving Affidavit.

It may be possible to circumvent the need for a will entirely in some cases by using a revocable trust and transferring your assets into the trust during your lifetime or adding transfer on death beneficiary designations to your accounts.  Revocable trusts do not require notarization unless real estate is held in the trust.

A durable power of attorney must be in writing, signed by the Principal.  It may be signed without witnesses or a notary.  However, when real estate is involved, a notary is necessary as the document must be recorded in the Registry of Deeds if the agent were to sign a deed on behalf of the principal. 

A health care proxy must be in writing, signed by the Principal, dated and signed in the presence of two disinterested witnesses.  Notarization is recommended but not required.  You may also wish to speak with your doctor about a MOLST (medical order for life sustaining treatment) form regarding end of life decisions. 

There are many options for signing your documents during this pandemic.  You just might need to get a little creative.  You may be comfortable signing at your attorney’s office with safety measures in place.  If you do not wish to leave your home to execute documents, you still may be able to sign documents.  You can use friends or neighbors to watch you sign the documents from a safe distance. Once the epidemic passes, you can then meet with your attorney to re-execute the documents to mitigate possible future attacks of improper execution, lack of competency or undue influence.  Massachusetts attorneys are also pushing legislation that authorizes attorneys who are notaries be allowed to notarize documents and conduct will signings online during this period.

The Law Office of Stephanie Konarski wishes to ensure clients can get the critical estate planning documents they need even if they are not physically able to leave their home.  At this time, the office is operational and can prepare critical estate documents by phone, video conference and email. Documents can be drafted and emailed to you for review or delivered to you by mail.   Once the documents are finalized, the Law Office can be available for in-person execution of documents while practicing social distancing, can email or mail the documents with signing instructions, or can be available for phone or video conferencing to oversee the signing to make sure the execution is valid.   

Contact us with any questions or concerns regarding your estate.