What estate planning documents can be prepared and executed during this crisis? A morbid topic but with the death toll in New York approaching 3000, this can be a concern for those who have never considered this issue. Some of these estate planning documents can be completed without counsel, although this is not recommended. So, let’s review some of these documents. NOTE: this post has been updated as per Executive Order 202.14, dated April 7, 2020:
1. Allowing video execution of wills
2. Designation of standby guardian for parents exposed to Covid 19.
3. Tolling extended to May 7
LAST WILL AND TESTAMENT
If you die without a Will, you die "intestate" and New York has codified into the law specific divisions of your estate when you die without a Will that may not conform to your wishes. New York divides your estate among a spouse and minor children. If there are none of these surviving, other members of your family may become entitled to part or all of your estate. Also, if there is no will, a Court may decide who will care for your children and their property if the other parent is not able to care for them or is unavailable. In addition, a Will allows you to give specific things to people of your choice.
BUT NOTE: You do not need a lawyer to write your Will for you or have a notary. However, your Will has to follow certain prescribed formalities, or it may not be legally binding. For this reason, many people have a lawyer draw up their Will. For example, the Will is a written document that says it is your Will and is dated and signed by you in front of two witnesses who should not be otherwise mentioned in the Will. The witnesses do not have to know what it says in your Will, only that you told them that it was your Will and they saw you sign it. The witnesses must sign your Will at the bottom and place their addresses after their signatures to complete the formality.
Although a notary is not required for a Will in New York State, in order for the probate process to be completed, the Court requires that the witnesses provide testimony confirming that the signing of the Will complied with the formalities of law. This testimony can be live or, as is most often done, by a sworn affidavit. However, what happens when one or more of the witnesses are deceased or cannot be located when the Will is being probated. That is where a notary will be required for the “Proof of will by affidavit of attesting witness out of court”, which allows the witnesses affidavit to be used to establish the validity of the Will. This affidavit is usually made when the Will is signed and is known as a “self-proving” affidavit and for that a notary is required. However, this can be done right now through video conferencing.
By Executive Order through April 18, 2020:
“Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:
The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
The person must affirmatively represent that he or she is physically situated in the State of New York;
The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution."
POWER OF ATTORNEY
If one becomes incapacitated, and if one wishes to avoid his or her family the necessity of bringing a guardianship proceeding, a Power of Attorney will be helpful. The Power of Attorney is frequently used to help in the event of a Principal's illness or disability, or in legal transactions where the principal cannot be present to sign necessary legal documents and gives an Agent that power. There are three forms: (a) A "Nondurable" Power of Attorney is often used for a specific transaction, like the closing on the sale of residence, or the handling of the Principal's financial affairs while the Principal is traveling outside of the country (b) A "Durable" Power of Attorney enables the Agent to act for the Principal even after the Principal is not mentally competent or physically able to make decisions. The "Durable" Power of Attorney may be used immediately and is effective until it is revoked by the Principal, or until the Principal's death; and (c) A "Springing" Power of Attorney becomes effective at a future time. That is, it "springs up" upon the happenings of a specific event chosen by the Power of Attorney. Often that event is the illness or disability of the Principal.
Powers of Attorney in New York State can also permit Agents, via a gift rider, to make gifts to members of the Principal's family and to non-family members. And that is why an attorney should be consulted on this document as well because a Power of Attorney can be abused, and dishonest Agents have used Powers of Attorney to transfer the Principal's assets to themselves and others.
A power of attorney does require that both the Principal and Agent sign before a Notary and as set forth above, this can presently be done through video conferencing. However, like a will, the statutory gift rider requires at least two witnesses not named as beneficiaries but unlike a will, the notary can be one of the witnesses.
HEALTH CARE PROXY/LIVING WILL
The New York Health Care Proxy Law allows you to appoint someone you trust — for example, a family member or close friend – to make health care decisions for you if you lose the ability to make decisions yourself. By appointing a health care agent, you can make sure that health care providers follow your wishes. Your agent can also decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own
This can be done without an attorney, you just need 2 independent witnesses, although it may be a good idea to consult with an attorney. Here is a link to the form and instructions:
https://www.health.ny.gov/publications/1430.pdf
END OF LIFE FORMS
New York also has Do Not Resuscitate (DNR) orders and Medical Orders for Life-Sustaining Treatment (MOLST). However, these require signatures by a medical professional. A health care proxy and a living will are traditional advance directives for adults 18 years of age and older. These documents are completed when a patient has capacity to do so and only apply when medical decision–making capacity is lost. To complement the use of traditional advance directives and facilitate the communication of medical orders impacting end–of–life care for patients with advanced chronic or serious illness, the Medical Orders for Life–Sustaining Treatment (MOLST) program was created. The MOLST contains specific and actionable medical orders that transition with the patient across health care settings. Health care proxies and living wills typically contain more general instructions and cannot be followed by EMS providers in an emergency. In contrast to a health care proxy, the MOLST applies as soon as a patient consents to the orders in it and a physician, or nurse practitioner signs it. It is not conditional on a determination that a patient has lost medical decision–making capacity. The MOLST program is based on the belief that patients have the right to make their own health care decisions, including decisions about life–sustaining treatment, to describe these wishes to health care providers and to receive comfort care while wishes are being honored.
For more information, see https://www.health.ny.gov/professionals/ems/policy/10-05.htm
CONCLUSION
In this crisis, we are thinking of our health and mortality and if we in that frame of mind, we should also make sure that our estate planning documents carry out our healthcare and testamentary wishes (although New York’s probate Courts are closed to anything other than emergency matters for the foreseeable future).
Of course, these documents should be prepared by an attorney and executed under an attorney’s supervision. And the big concern among attorneys in this crisis has been the inability to perform full will executions through video conferencing. There is a listserv with the New York State Bar Association where some attorneys believed that the bolded language below allows for the virtual acknowledgment by the testator:
“The Trusts and Estates Section of the New York State Bar Association set up a committee to address digital wills in 2019 to evaluate legislation passed in other states, the recent uniform law for digital wills and the complexities surrounding remote witnessing and remote notarization. In response to the current health crisis, a special task force of the NYSBA Trusts & Estates Law Section has been created to address the execution of wills and attesting witness affidavits. This task force is comprised of members of the NYSBA Trusts & Estates Law Section, Elder Law and Special Needs Section and the New York City Bar Association. Calls have been made for emergency legislation to be enacted to allow for virtual witnessing of wills and virtual notarization of the attesting witness affidavits. The Task Force is acutely aware of the challenges faced by our profession and our clients and we are also mindful of the pressure on the New York State legislature at this unprecedented time. The task force has been charged with legislative proposals for prospectively (and perhaps retroactively) addressing this crisis. In the meantime, the following are best practice suggestions:
1. Skype or other means of communication can be used by an attorney with the testator to review the will and review proper will execution requirements. EPTL 3-2.1 requires that the will be signed in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by the testator or at the testator's direction. The testator can either sign the will in the presence of the attesting witnesses or acknowledge his or her signature affixed to the will to each attesting witness separately. So long as two attesting witnesses sign the will within thirty (30) days after the testator signed it, and the remainder of the will execution requirements of EPTL 3-2.1 are met, the will should be in proper form and considered duly executed. An attorney can even supervise the will execution via Skype, telephone, or other means of communication to assist in proper execution.
2. If a beneficiary under the will or a beneficiary-distributee of the testator is an attesting witness to the will, be mindful of the interested witness rules provided in EPTL 3-3.2. An interested witness will not affect the validity of a will under this rule, but the disposition to such witness may be impacted. A disposition or appointment made to an interested witness is void unless there are two other attesting witnesses who receive no beneficial interest or appointment under the will. There is, however, an exception for an interested witness who is also the testator's distributee. In that case, the interested witness will be entitled to the lesser of their intestate share or the amount devised to such person under the testator's will.
3. The attesting witness affidavits do not need to be executed by the attesting witnesses at the same time the will is signed-they can be signed after the testator executes his or her will. These witness affidavits can even be signed after the testator's death pursuant to SCPA 1406. Any deviation to a "typical" will execution ceremony, such as an attorney supervising the will execution via Skype, telephone, or other means of communication, should be mentioned in the attesting witness affidavit when it is later signed.”
Some attorneys believe that the prudent decision would be to delay any wills, POAs or other advance directives signings until more clarity comes down from the state government concerning virtual witnesses. Others believe that the provisions of estate preparation documents should be deemed as essential services, allowing certain persons to go into the office to have the will reviewed, signed, witnessed and notarized.
NOTE: with respect to trusts, New York law provides that: “Every lifetime trust shall be in writing and shall be executed and acknowledged by the person establishing such trust and, unless such person is the sole trustee, by at least one trustee thereof, in the manner required by the laws of this state for the recording of a conveyance of real property or, in lieu thereof, executed in the presence of two witnesses who shall affix their signatures to the trust instrument” Thus, either before a notary or two witnesses.
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