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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