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Can I Make a Will During Lockdown?

Can I Make A Will During Lockdown?

The Covid-19 pandemic has provided a loud wake up call for New Yorkers who’ve put off estate planning. It’s hard to argue that many of us are now more motivated than ever to write that Will, execute that Health Care Proxy, and make a Power of Attorney.

But how? After all, New York is on PAUSE.

The answer: Virtual Will execution under the supervision of an experienced estate planning attorney.

The truth is that it still isn’t clear whether estate planning documents in New York can be executed over video conferencing software, like Zoom or FaceTime.  But most estate planning attorneys are in agreement that estate planning documents executed during quarantine over video conferencing software will likely be honored by the courts, so long as the documents follow the same statutory requirements as an in-person signing.

For Wills, the challenge is that a New York Will must be executed or acknowledged in the “presence” of at least two witnesses. Prior to the Covid-19 pandemic, estate attorneys routinely had their clients execute Wills in the physical presence of two witnesses. Now, it isn’t clear whether physical “presence”  is required, or whether audio-visual software will do the trick. 

The good news is that New York’s governor issued an Executive Order  allowing virtual notarizations. This means a Power of Attorney and Trust can be executed remotely over audio-video software.  That’s because you only need a notary public to execute a  New York Power of Attorney or Trust

But two issues arise. First, with the Power of Attorney, the Statutory Gifts Rider requires the “presence” of two witnesses, the same as a Will. Statutory Gift Riders are not required, but are important for clients who may one day need others to engage in Medicaid or tax planning on their behalf.  Second, with the Trust, you still need to title assets into trust, which may mean executing deeds and opening or renaming bank accounts, which poses its own challenge during the Covid-19 era.

For clients that don’t have access to, or can’t use, video conferencing software, quarantine and social distancing poses its own set of challenges.

The silver lining is this: At some point, an executive order, legislation, or judicial decision will likely issue that authorizes remote, virtual, estate planning due to the unique circumstances. But what if a change to the law does not result? The fix for many clients will simply be re-executing their documents once things go back to normal, or the new normal.

If you have additional questions regarding making a Will and estate planning in the Covid-19 era, you can contact us at (646) 820-4011 and djr@djrattorney.com.

This article is intended for educational and marketing purposes. It should not be construed as legal advice. Every case presents its own unique facts and circumstances, and every client has their own individual needs.

Daniel J. Reiter, Esq.

Daniel J. Reiter, Esq.

Daniel J. Reiter is an attorney admitted to practice in New York. Mr. Reiter focuses in the areas of estate and trust litigation, non-routine Surrogate’s Court work, adult guardianship and mental health law, power of attorney litigation, and civil litigation and dispute resolution. He also routinely practices in the areas of estate planning, elder law, and Medicaid.

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