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COVID-19 and Estate Planning

Updated: Nov 11, 2020

Attorney Thomas B. Burton discusses how COVID-19 and the coronavirus pandemic in the state of Wisconsin and throughout the globe has changed the way people do estate planning. Attorney Burton also discusses several ways for you to meet with your estate planning attorney, without the risk of any person to person contact that helps COVID-19 spread so easily, including the use of video and phone meetings. Attorney Burton explains how live video meetings have proven to be a very useful tool in his law practice and also announces a new feature at Burton Law LLC where the firm will send an android tablet video device to clients via U.S. Mail before their meeting, that they can use to conduct the video meeting with Burton Law LLC. To request a device for a meeting with our office, send us an email here with "Need Video Device" in the subject line and your mailing address in the body of the email and we will get your video meeting arranged as soon as possible. You can also schedule your meeting directly online here.

Attorney Burton also discusses the witness requirements for various estate planning documents in Wisconsin, including the "presence" or "conscious presence" witness requirement for certain estate planning documents in Wisconsin such as for a Last Will and Testament, a Power of Attorney for Health Care or an Advance Directive (also known as a Living Will). Attorney Burton discusses options for signing these types of documents during this time, including the use of Drive Thru Will Signings, and signings in person with masks and social distancing during the COVID-19 pandemic. Attorney Burton also suggests several estate planning documents that can be signed without witnesses, and that can help you avoid probate and conflicts regarding your estate including trusts, powers of attorney for finances, and certain deeds and real estate documents.

Want to know what type of estate planning documents are best for your situation and also have the opportunity to schedule a Free 15 Minute Estate Planning Strategy Call with Attorney Burton? Obtain Your Free Will vs. Trust Estate Planning Guide and schedule your strategy call here.

Transcript of Video - COVID-19 and Estate Planning

Welcome Back!

I am Attorney Thomas Burton. I'm an Estate Planning and Asset Protection attorney here in Wisconsin. And today's topic is covid-19 and estate planning. So in the year 2020, I know many of us are getting tired of hearing and dealing with Covid, but it's a big factor in daily lives and going to be an issue here heading through the winter. And this is a topic, I wanted to cover in more detail as it relates to your estate planning during Covid-19 and specifically how you can get things done during this time.

I thought of this topic after Monday when I was having a meeting with an older client, and thankfully we were able to set up the meeting via video conference like this. The client was able to stay in their home and there was no risk of transmission of germs. We were able to have a nice, long conversation without wearing masks and do it face-to-face, but without being in person and I have been holding meetings in the conference room with…. but sometimes with older clients and even for me, it can be difficult, a little bit difficult to hear because you can’t use some of those senses where you're reading the lips as you're listening at the same time. So this video conference worked very well, but towards the end of the meeting, we were discussing possibly if they wanted to change some of their documents, how we would sign them during this time and the client asked me if we could just do it via video like we were doing the meeting and they could have me witness them sign during another live video meeting and I said to them, to me that makes sense and I would like to be able to do that. But currently in the state of Wisconsin, we do not allow remote witnessing or remote notarization for estate planning documents.

So some of you may recall in the spring, Wisconsin adopted some emergency rules, allowing remote notarization, and I did a video on that topic, you can check out but it just, this legislation was passed before the covid-19 pandemic and unfortunately, it only applies to certain real estate documents like deeds and other things to allow for remote real estate closings. And while that is useful for real estate transactions, with estate planning being on many people's minds right now, many states are also moving to having a remote witnessing and notarization option for estate planning documents. Of course, there's concerns about we want to balance protecting people from undue influence when signing these documents but there's other states, I feel that, that have adapted reasonable ways to set rules for this process where you can still do a signing or witnessing via live video conference and maybe you send the paper document to the lawyer or notary after it, to apply the seal, the notary seal, something like that.

So today, I wanted to talk briefly about the current state of things in Wisconsin where we still require what's called wet signatures on your estate planning documents and I just finished up a corporate law matter, for a client, yesterday or the past couple of days and in that case, we were able to do electronic signatures, really easily signed this corporate document. The shareholders could sign using e-signatures and it also made me think, I wish I could offer, a good option for this right now with estate planning documents.

So at my office, what we're doing is we're trying to move as many meetings as possible to either live video console like this or phone and then saving the in-person meetings when necessary for signing documents such as an estate planning document and in Wisconsin, there's really three documents that currently, we can’t sign, without the witnesses being present in the room with the people and those are the last will and testament, a health care power of attorney or a living will which is called an advance Health Care Directive.

If you have watched some of my other videos, I recommend everyone have a, name a health care agent the power of attorney for healthcare. And this is one of those documents that the statutes talk about having a witness, in the consensus presence of the person signing. So I've got the statutes here, tap to 155 on Health Care documents. If we go to 155.30 sub B, it says signed in the presence of two witnesses who meet the requirements of sub 2 and it's someone who has attained the age of 18 and they have to test the person making the signs, at the express direction in the presence of the two witnesses, sign at the presence of two witnesses. So here they use the word presence, ‘signed in the presence’ and then we go to the living will document and it says it must be signed by the declarant in the presence of two witnesses, Wisconsin statute 154. And then the will the document disposing of your property, we go to 853.03 - execution of wills and you will see here, it says the testator's conscious presence. Now, that's the testator is the person who makes the will. The conscious presence of the testator so that's, the word using conscious presence, so basically as estate planners, the real property and the probate section of the State Bar of Wiconsin to the Supreme Court in early spring for an emergency order that would allow remote witnessing of these documents, but unfortunately in May, the Supreme Court turned down that petition and they had this is a section of the state by the deals with real property, probate issues and they had put several proposed safeguards in the order, but the Supreme Court turned it down in a brief denial and said that even with the safeguards proposed, deciding whether the statute would allow remote witnessing, is a complicated task, better undertaken in the context of a case or controversy than in an emergency request for temporary guidance. So basically the court said they were unwilling to use their rule making powers to issue this and they would have to see it come up in a court case and what I feel that means is, it’s sort of, some of estate planning laws are based on case law, so a case has to be brought before the court will look at an issue. And so it's possible from this crisis, someone will attempt to sign a document via video technology, but the court would, are saying they prefer to decide it as an actual case meaning a litigation over the issue at this point.

The other option I see would be for the legislature and the governor to act and adopt a new law allowing for remote witnessing and I'm hoping that's what happens in the future. And if it's important to you, I suggest you bring it up with your local legislator.

So the current state of affairs in Wisconsin is we have those three documents that really require wet signatures and not everyone chooses to do a living will and a healthcare power of attorney. But let's say for sure you want to get your will done, at my office, what we're doing is if you need to sign that, we can either do a drive-through signing where you stay in the car and we witness you do it through the glass or we can do it in the office conference room with the masks on and we keep it as brief as possible. But for a lot of my other meetings, what I'm finding is this live video is working very well and that allows us not to have to be rushed through the meeting because I don't like to rush clients, when they're thinking about their planning but the live video of the two meetings I had in the last two days, they were able to go, one was two hours, one with an hour and a half and we didn't feel rushed. And again, we weren't in that close contact in terms of increasing the risk of germ transmission. So if you're looking at doing estate planning with an attorney no matter what state you are in, I would see about whether they can do a virtual meeting with you for your first meeting and phone is also an option. But what I find is it's nice to have this face-to-face interaction because there's certain nonverbal cues, you lose over the phone, but when you are having a video meeting like this, you can see when the other person's talking and then you can wait to talk and take your turns like you would, in a normal, face to face meeting and that's what I always enjoyed about the face-to-face meeting as you get to have a good time and laugh and it's enjoyable in there and those awkward pauses like can occur sometimes on the phone.

That's the current state of affairs for your estate planning in Wisconsin. If you're watching across the country, check with your local jurisdiction because like I said some states in fact, I have a lawyer friend in Maryland who said they had adopted and I think it was prior to the crisis away to do some remote notarization even for estate planning documents.

Now, it's a reminder in Wisconsin the statutes allow us to create a trust, without witnesses. We simply need the signature of the person, creating it, the trustor. So that's an option, we can bypass probate and use trust planning for you. And in addition power of attorney or financial power of attorney can be adapted with just the signature of the person making the document. So there's lots of options to get documents in place and real estate documents, now, there's ways to do remote notary and there's ways I can witness your signature for purposes of a deed authenticated deed, we call it, only licensed attorney can do this in Wisconsin.

So if you're thinking about doing some estate planning during the crisis, don't be deterred from beginning just look for ways to do it in a safe socially distance way and I know a lot of lawyers are offering the role remote meetings, and I want to encourage folks to take advantage of that option and one last thing I'll mention for today's video is this summer, thinking about ways to make the remote meeting easier. I've got a new option at my office, where I got I bought a 8 inch tablet and I got this special case for it, here you'll see, it's just an Android Tablet with the camera up top, and then it folds into a triangle shape here and I'm making it available, starting now, this coming month, starting here with the last couple days of October and November, to any client, who wants to have a video meeting with me, if you don't have a video conferencing device like many older people sometimes don't have a smart phone with the camera built-in, I can mail you this device, via mail, I will send it priority mail, padded envelope, and we just need to set it up, a couple of weeks in advance. So that you can get the device via mail. And then, inside I have printed instructions that show you exactly, couple of pages, step by step, turn it on, connect to WiFi and your meeting will be pre-set up on the pad, so you just log in at the time given for your appointment.

So if you are watching this, a friend or a loved one, that’s an option now with my office, and we just ask that you schedule it ahead so that we have time to get the tablet to you. And I would encourage you to explore options like that. The only thing that you will need on your end, is an internet connection or a mobile device that can through off a mobile hotspot internet connection.

I am trying to make the video meetings as easy as possible, and even expand the reach who might not traditionally have them. And right now, I know many nursing homes and senior care facilities are still closed to visitors, so this is a way, we can also get a device inside for video meeting without the risk of any person to person germ contact.

So again, I wanted to talk about Covid 19, estate planning, the current state of affairs. Do not be deterred from meeting with an attorney, getting the process going, but hopefully this video helps you think about steps you can take to do it, in a safe and socially distant way and still complete your planning, during the Covid-19 pandemic.

Thanks for watching and we will see you next time.

Transcript and captions provided for ease of access for the hearing impaired.

For questions about this topic, or to suggest a topic for a future blog post, please contact the office.


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