Executing Estate Planning Instruments In The Era Of Covid-19.

I'm a solo practitioner whose law practice is focused on crafting estate planning documents for clients in Minnesota: primarily Basic Wills, Powers of Attorney, and Advance Health Care Directives. The scope of my practice is limited to those services at this time and it does not include trusts or probate administration.

Until about six months ago I had the agility to move about freely, meeting clients on-the-fly to discuss their legal needs in locations that were convenient for them. I would draft their documents, and come time to sign them, I would gather the client and witnesses together at my office, or sometimes in the client's home. Whatever it took to accommodate their busy lifestyles.

Then the novel coronavirus hit in March and Minnesota wisely turned back the dial. At first, only essential services were allowed to operate. Even if I could keep operating, potential clients simply were not interested in meeting with estate planning attorneys and they had other things to think about. My law practice was quiet for several months.

Now that things have been opening up somewhat, I am being approached by people interested in obtaining Wills and other estate planning instruments. I started formulating in my mind how I would do this in a safe and efficient manner. Given the controversy over the reopening of businesses and schools, I am keenly aware of the well-founded fears many people have at this time. I certainly want to exercise an abundance of caution and would never wish to add risk to the equation.

Fortunately, working with clients on estate planning documents can be done mostly remotely. When someone makes initial contact I can communicate by email, phone, or text to gather basic information and answer preliminary questions. I can send out an electronically-fillable questionnaire that the prospective client can complete and email back. A short no-cost initial consultation by phone can help fill in the blanks for both attorney and prospective client. If the client chooses to engage my services, I then move forward with drafting their documents.

The pinch point arises when it's time to sign (execute) the documents. The execution requires at least four people to meet in one place. The client signs in the physical presence of two witnesses, then the witnesses sign. I am a Notary Public, so I sign and notarize the self-proving affidavit which is incorporated into the Will.

The testator, witnesses and I must meet in-person, with a clear line-of-sight of one another throughout the process. Although Notary functions can be performed remotely, Minnesota law does not allow wills to be witnessed remotely. 

Note that in April, Minnesota enacted the "Harmless Error Rule," allowing non-executed Wills to be recognized by the courts--so long as there is clear and convincing evidence showing that the testator had intended for the Will to be controlling. That means if you die before your Will has been properly executed, the document must be entered into formal probate. A judge then makes the determination--by a clear and convincing evidentiary standard--as to whether the document reflects your intent. This harmless error rule is temporary, and expires Feb. 15, 2021.

Therefore, as a practical matter, the formality of an in-person meeting of some sort is still a necessity to properly execute the documents. How to do this and maintain social distancing?

I initially thought that gathering everyone in a room in my office would be best. No more traveling to execute documents at clients' homes. I could easily keep everyone more than six feet apart, we'd all wear masks, and the physical presence requirement of Will execution would be fulfilled. But it just didn't sit right with me. There had to be a better way.

After some more thought, I decided that I was not comfortable even using that in-office protocol. Though the execution process takes only about 15-20 minutes, I simply did not want to risk the safety of my clients, myself, and others around us by having four or five people together in a small room indoors, coming in and out of doorways and such. 

I knew I had to further reduce the risk, and physically meeting with others in a room would not do.

One of my high school friends practices estate planning law at a small firm in another state that requires similar formalities. I asked him for advice. He said his firm does a sort of "curbside document execution" service. The client drives into the firm's parking lot and remains in their car. The attorney and staff come out to the car, documents in hand. Everyone performs their role in the execution while outdoors. Signing, witness signatures, notarization. Brilliant!

I have adapted a version of that curbside method, instructing the client to arrive at the driveway of my office at the appointed time. I, the witnesses, and the client will be able to sign off everything while the client is safely ensconced in their car and the rest of us are safely standing outside. Everyone with masks on. After the execution is complete, I can electronically scan the completed documents for my records, and hand the originals to the client to take home (I don't store original documents for clients).

Sadly, this adaptation has changed the face of my practice in more ways that just logistical. I miss the face-to-face meetings with clients in a quiet coffee shop. I miss building a rapport with the clients, the few minutes of small talk before we delve into business. I miss clients showing me pictures of their kids or talking about a recent vacation. But more than anything, I miss being there in-person to discuss the client's needs. But this is a small price to pay and is what needs to be done to protect people.

In the era of Covid-19, it's all-business and the rule of the day is to keep things brief and to the point. Get in, get out. Easy and safe.

 

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A good estate planning attorney can help you get started with a plan that is tailored to your wishes and goals, and help protect your assets for your loved ones.