The COVID-19 pandemic has highlighted the need for thorough estate planning, while simultaneously making it difficult for clients to get their estate planning documents in place. Our clients and their family members may wish to have new Wills, Trusts, Powers of Attorney, or other estate planning documents prepared, or may wish to have existing estate planning documents updated. Yet, many clients have expressed that they are unsure whether completing an estate plan is possible while adhering to “social distancing” guidelines.
There are several estate planning documents that are essential for almost any adult, whether during a worldwide pandemic or at any other time. As most people know, a Last Will and Testament (a “Will”) governs the disposition of assets at death, as well as naming an Executor to oversee that disposition and naming a Guardian for minor children. However, other documents, such as Healthcare Powers of Attorney, Living Wills, or Financial Legal Powers of Attorney, help ensure that clients’ intentions are achieved during their lifetimes when they are incapacitated or unavailable (for example, during a hospitalization). These documents are just as important as a Will yet are often overlooked. For clients with greater wealth or more sophisticated assets, different types of trusts will serve a multitude of purposes, including tax planning, asset management, and provisions for minor children.
Under Ohio law, a Will must be signed not only by the Testator (the individual executing the Will), but also by two competent witnesses in the “conscious presence” of the Testator. Currently, electronic communication does not qualify as “conscious presence.” In other words, a Will must be signed in the physical presence of two other people. Those two witnesses should be “disinterested” (i.e., not blood relatives or beneficiaries under the Will), so that all provisions of the Will are considered valid. When signing other types of Ohio estate planning documents, such as Healthcare Powers of Attorney or Living Wills, witnesses are not required if the documents are signed before a notary. Although a Financial Legal Power of Attorney does not technically require either witnesses or a notary, there are circumstances in which it cannot be used if it is unwitnessed or unnotarized; therefore, we highly recommend that all Financial Legal Powers of Attorney be witnessed and notarized at the time that they are signed.
Unlike in other states, such as New York and Massachusetts, there has been no legislation during the COVID pandemic which would alleviate Ohio’s in-person Will witnessing requirement. A taskforce was recently created by the Ohio State Bar Association to review proposed legislation which would allow for the electronic witnessing of Ohio Wills, but until such legislation is passed (if passed at all), the witnesses to an Ohio Will must be present in-person. However, Ohio’s 2019 Notary Public Modernization Act now allows for notarizations to be performed electronically by specially-authorized “online notaries.”
At SMDK, we have developed creative solutions to help our clients safely sign their estate planning documents while adhering to Ohio’s social distancing guidelines. We now perform “socially distant” document executions, which involve meeting clients outside at a convenient location such as their own home or a public park, and act as witnesses to their Will signings from a safe distance. For documents that require only a notarization but no witnesses, such as a Trust or Healthcare Power of Attorney, our firm now offers online notarization services over videoconferencing platforms such as Zoom. For the safety of both our clients and our attorneys, we work to ensure that our clients’ documents are completed without compromising the necessary COVID safety standards.
Although we have assisted our clients in safely executing their estate planning documents, there are certain situations in which document executions during COVID are simply impossible. For example, clients who live in assisted living facilities are subject to restrictions on visitation, such that attorneys, notaries, and witnesses cannot meet with them at all (even in a socially distanced manner). Therefore, it is imperative that our clients and their family members get their estate plans in order as soon as possible, since it is impossible to know when an emergency may impede the ability to do so.
While this client advisory is intended for informational purposes only and is not legal advice, we encourage you to call your SMDK attorney for advice regarding your specific situation. We are available to assist you in answering questions about your Ohio estate plan or our firm’s procedures during COVID.