These are difficult and uncertain times. You are right to be concerned about your health and the health and safety of your families. In times like these, people look to their trusted advisors to help them navigate through an uncertain future. Many people, who are being reminded of the fundamental purpose of estate planning by today’s headlines, are turning to estate planning attorneys to ensure their property and assets are protected, their wills and powers of attorney are prepared and up to date with current law, and their affairs are in order if the worst were to happen.
Despite many people’s desire to complete their estate planning in today’s uncertain environment, social-distancing mandates require creative solutions. While meeting at your lawyer’s office to review and sign documents is not allowed for the time being, it is possible to complete your estate planning. Indeed, Michigan’s laws concerning the creation of estate planning documents make it difficult, but not impossible to create an estate plan with trusts, wills, and powers of attorney all remotely from the safety of your home. Our firm understands the law and possesses the technology necessary to assist you in creating an estate plan under these unique and difficult circumstances.
HOW DO I CREATE A WILL WHILE QUARANTINED?
Michigan essentially provides two methods for creating a will. The most common method is by a signed writing. A typical client meeting to sign a will includes the attorney, a notary, two disinterested witnesses, and the client(s). This method requires at least five people gathered together, presenting obvious challenges given the current need to maintain social distancing and interact only with those people who live in your immediate household.
The second method, involving the creation of a holographic will, does not require witnesses but has other drawbacks limiting its effectiveness. Holographic wills do not require two disinterested witnesses, but they must be written entirely in the testator’s handwriting, which eliminates the advantage of having an attorney draft the will. For clients with physical disabilities or those relying on an attorney’s expertise, this is not a viable option.
However, a recent Michigan Court of Appeals case gives hope to those who wish to create a will with the assistance of an attorney and sign it remotely without being in the presence of multiple witnesses. In the case of In re Estate of Horton, the Michigan Court of Appeals upheld a probate court’s ruling that a note stored on a deceased person’s cell phone, which was unsigned and undated, qualified as a valid will despite the lack of witnesses or signature. Based on the ruling in Horton, if there is clear and convincing evidence that a document is in fact intended as a will, the lack of disinterested witnesses is not fatal.
Examples of clear and convincing evidence could include signing a separate document confirming the existence of the will; signing the will while participating in a video conference with the attorney; or merely recording yourself signing the will with a cell phone camera and saving the recording with the will. This list is not meant to be exhaustive and other methods of providing clear and convincing evidence of the testator’s intent will be acceptable, particularly if the will is created during any government-mandated lockdown due to the COVID-19 pandemic.
BUT WHAT ABOUT A CREATING A TRUST?
Most estate planning clients are conscientious about avoiding probate and limiting costs after their death. The best way for most people to avoid costly probate proceedings after death is by creating a revocable trust. A revocable trust is a flexible way to own, manage and ultimately distribute property after an individual (or couple) dies. Like a will, it contains instructions for distributing property to beneficiaries after death. Unlike a will, however, Michigan law does not require disinterested witnesses to be present at trust creation. This is good news for those who would like to complete this important estate planning tool remotely.
However, it is important to understand that a trust is not effective unless it is properly funded. The attorneys at Kirk, Huth, Lange & Badalamenti can assist you in drafting a trust and getting it signed and funded all remotely from the comfort and safety of your home.
HOW IMPORTANT ARE POWERS OF ATTORNEY FOR FINANCIAL & HEALTHCARE MATTERS AT THIS TIME?
In a word – extremely! For many clients, the creation of a general durable financial power of attorney and healthcare power of attorney naming a patient advocate is as important, if not more important, than the creation of a will or trust. Under current Michigan law a general durable power of attorney must be signed either in the presence of two disinterested witnesses or a notary public. If you need to execute the power of attorney remotely, the notary public option is the best choice.
The State of Michigan allows for remote notarization of documents like powers of attorney and deeds. There are several online services that are approved by the State of Michigan that our office can pair you with to assist in notarizing the documents that our attorneys prepare for you. This allows our office to prepare a power of attorney, deed, or other transfer document necessary to fund your trust, that you can fully execute without ever having to leave your house.
Unfortunately, Michigan law does not currently provide for an option to remotely sign and witness a healthcare power of attorney (also known as a “living will” or “patient advocate”). This is a gaping hole in the state’s statutes that should be addressed either by an executive order or by a legislative amendment. Given the current emergency, it may be possible for a “witness” to remotely sign the healthcare power of attorney, either electronically or by facsimile, if the “witness” observes the principal sign the healthcare power of attorney remotely (i.e. via video conference). The Governor and legislature should clarify this discrepancy in the law that leaves people vulnerable when they’re most in need of protection.
CONCLUSION
At its essence, a well-prepared estate plan is a tool that provides you with peace of mind and comfort knowing that if anything unexpected happens, you are prepared. Now, more than ever, having a plan that provides certainty in an uncertain future is a necessity for every family. We can meet with you remotely via telephone or video conference, prepare a plan for you, and ensure that it is effective in a matter of days. If you have any questions or need help navigating the estate planning process, please do not hesitate to call or contact attorney Michael Taylor.
