Now is a Good Time to Review Your Estate Plan

By Steven Smith | Waypoints

Mar 30

While it may seem morbid, now, during the Covid-19 outbreak, is the time to make sure the estate and disability plans for you and other members of your family are in order. Especially if you or your parents are over 60.

These documents typically include: Wills, Living Trusts, Financial and Medical Powers of Attorney and a Living Will.

Find them. Dig them out. And make sure you understand them and that they will accomplish what you want them to. If you’re not sure, contact your attorney to schedule a conference to go over them and discuss any advisable changes.

One good idea is to include a younger, capable, low-infection-risk person among your successor fiduciaries (agents, personal representative, trustee, guardians for children.)

Financial and Legal Services Deemed Essential by Governor Polis

Social distancing has made communication with advisors and execution of plan changes more difficult. But don’t let that stop you. Most financial and legal professionals around the country, including me, are now working from home and communicating with clients via telephone, email and web conference. And useful refinements in the stay-at-home protocols together with innovative regulatory actions are occurring almost daily.

On March 25, Colorado Governor Jared Polis issued his first comprehensive stay at home order. The most salient feature of this order is requiring people to take extreme steps to avoid contact with anybody outside their household to reduce the possibility of transmission of the virus. There were exemptions for essential businesses; including grocery stores, gas stations, pharmacies, police stations, fire stations, hospitals, clinics and healthcare operations, garbage/sanitation, public transportation and public benefits hotlines. The following day, the order was amended to also include financial and legal services as being exempt critical businesses.

The governor’s order appears to allow work to be conducted in law offices, if necessary, including ceremonies to sign legal documents; while practicing social distancing. But that may not be necessary.

Formalities: Witnesses, Attestation and Notarization

Usually, I put this disclaimer at the end any time I write something that involves legal issues: THIS ARTICLE IS NOT LEGAL ADVICE. While I have done a bit of research to try to pull some of these technical pieces together, there can be no substitute to consulting with your own legal advisors on any of these questions.

The different components of your plan – and the documents implementing them – by statute require different degrees of formality; including, most importantly, the signing of a document personally before a licensed notary public. The main purpose of notarization is to verify the identity of the signer. And the notary then attests to the witnessing of the signature.

These formalities vary from jurisdiction to jurisdiction. They can be especially strict in connection with wills. Some states require the execution of a will to have live witnesses. Which is why you cannot do any of this on your own, without competent legal advice from a knowledgeable attorney in the applicable state.

Traditionally – and technically – these formalities, for a signature to be valid, have always required the person making the signature to appear personally before the notarial officer. That notary must be in the same room  as the person who is signing the record.

There is a process for “electronic notarization” but this still requires the notary public to be in the same room as the signer. This process simply permits the document itself to be in electronic – and not paper – form and does nothing to solve the problem created by social distancing.

Emergency Regulations Underway

New York was the first state to respond to the crisis by allowing notarization by audio-video technology.

Other states, including Colorado, have followed suit. On March 27, Governor Polis issued the following executive order: Pursuant to the authority vested in the Governor of the State of Colorado and, in particular, pursuant to Article IV, Section 2 of the Colorado Constitution and the relevant portions of the Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701 et seq. (Act), I, Jared Polis, Governor of the State of Colorado, hereby issue this Executive Order ordering the temporary suspension of the personal appearance requirement before notarial officers to perform notarizations due to the presence of coronavirus disease 2019 (COVID-19) in Colorado.”

On March 30, Colorado Secretary of State Jena Griswold – who is responsible for the regulation of Notaries Public – issued temporary rules authorizing remote notarization via audio-video communication for the State of Colorado. It will probably take a few days for notaries to get up and running in understanding the rules and getting comfortable with the technology. But soon this will enable you, in consultation with your attorney, to update any of these important documents and be comfortable that you have a solid plan in place.

Attorneys Ready to Assist

And I will tell you this: The attorneys I know who practice in the estate planning section of the Colorado bar are conscientious and caring and provide wise counsel to clients facing difficult estate planning situations. They are following these developments quite closely and are prepared to assist in any way they can.

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