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Do you Need an Attorney to Draft Your Estate Plan During the Covid-19 Pandemic?

Posted by Andrew Byers | Mar 31, 2020 | 0 Comments

There has been an increase in the numbers of Americans rushing to make their Wills and other estate planning legal instruments. Understandably, the coronavirus pandemic has created the scramble to set up Wills and advance healthcare directives.

Who needs a Will or Trust? Ask yourself if you care who gets your property or money if you die? If you have minor children, do you care who will act as their legal guardian? If you were so sick that you could not make your own medical decisions or pay your bills, is there someone you trust that you would want to make those decisions for you? The answer is anyone married, anyone with children or anyone with assets needs a properly drafted and signed Will or Trust and advance healthcare and financial directives.

Estate planning instruments need to be both legally valid and personally effective. In order to be legally valid, the estate planning instruments must contain certain legal-technical provisions and they must be signed in accordance with the state's laws.  By personally effective, I mean they must be drafted to contain the legal-technical provisions and clauses that match your personal situation and assets (your estate). In order for an attorney to counsel clients on estate planning and draft legal documents for them, the attorney must have an undergraduate degree, have a law degree from an accredited law school, pass the state's bar exam (a test administered over two days), and pass a credential and background check in order to be admitted to the state's bar. Once admitted to the state's bar, the attorney is legally able to give legal advice, represent people in court, and draft legal documents, including estate plans. These requirements are meant to protect the public to ensure the attorney has training and is competent to make estate planning recommendations and draft Will and Trusts. 

While there are similarities in general legal principles amongst the states, each state's laws, including their estate planning, probate and trust administration laws are unique. That's why there is no one individual who is admitted as attorney to practice law in each of the 50 states. It is simply not practical or realistic for one person to know all of each state's laws and take the bar exam in each state. That's why it is also not realistic for any one online company to create a system to prepare estate plans that are both legally valid and personally effective in each of the 50 states.  However, online legal document preparation services are not held to the same standard as attorneys and have no regulatory oversight, so they get away with making claims about validity and effectiveness that may not hold up. If you look carefully at these companies' legal disclaimers and terms of use, they say the information provided and documents generated on their websites are not guaranteed to be correct or complete. Would you hire an attorney to draft your Will or Trust if he said this "might not work"? I wouldn't. Since estate plans are not used until you are incapacitated or deceased, that's when it would be discovered if there was a problem with it.  But if you incapacitated or deceased, you will not have the ability to fix it then. Due to the internet drafting companies' disclaimers and terms of use, there is no accountability and they have no responsibility if your estate plan is ineffective.

Many law offices, including mine, are turning to telephone and video conferences with their clients to address social distancing protocols while still providing legal services including estate planning. Video conference applications are experiencing a big increase in daily users. Part of this significant increase includes hosting secure attorney/client meetings for estate planning consultations. The importance of an experienced estate planning attorney guiding you through the process of creating a Will or Trust and advance healthcare and financial directives cannot be understated as they understand the nuances of how things need to be written so that it works. Once your estate plan is drafted, it must be correctly signed and witnessed. Mistakes in the signing process can open a Will or Trust to challenge if not invalidate the entire plan and create fights amongst the family. I can guide you through the signing process, so that your estate plan is legally valid, even if it is being done outside of my presence.

Beyond the creation of a Will or Trust, many Americans are increasingly concerned about their financial powers of attorneys, designations of patient advocates and end of life directives. These "life documents," as they are active while you are alive, are equally as important as your Will.

According to research in a recent New York Times report, health care workers are more likely to contract COVID-19 than the average person. During this pandemic, many doctors and other medical professionals are rushing to have their wills drawn up. In addition to doctors, anyone on the front lines in the fight against COVID-19, from hospital custodians to nurses to EMS responders, should either make an estate plan or possibly update their existing one. However, the truth is no matter what your profession or likelihood of contracting this virus, you should always have a legally valid and personally effective estate plan during and after this time of considerable uncertainty. After all, it is something each of will need; we just don't know when.

There are few things you can act on during the COVID-19 pandemic that can bring you assurance and a sense of relief. The legal creation of your estate plan is an action you can take that protects you, the people you care about, and your savings and property. I can help you create a legally valid and personally effective estate plan, even if we can't meet in person during the duration of the stay-at-home order. Give me a call at (248) 469-4261 or fill out the "contact us" form on the right  to get started.

About the Author

Andrew Byers

Andrew Byers' elder law practice focuses on the legal needs of older clients and their families, and works with a variety of legal tools and techniques to meet the goals and objectives of the older client. Under this holistic approach, I handle estate and longevity planning issues and counsel cli...

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