With the uncertainty and fear surrounding COVID-19, we wanted to address some of the services that we offer and some of the documents that we recommend you have in place. We are also going to focus on what you can do without leaving your home to come to an attorney’s office and will provide as much practical guidance as possible.
Our physical office in Gainesville, Florida reopened for in person meetings as of June 1, 2020, but we are also available for phone or video consultations, as well as by email. We will do our best to keep this blog post up to date as the situation changes. For clients that are uncomfortable with coming in to our office, we are currently handling signings in clients’ backyards or driveways using a procedure which we have developed for that purpose.
Probate and Trust Administration
We sincerely hope that the COVID-19 outbreak is not as serious as we fear. However, one of our areas of expertise is advising families about what they need to do when a loved one passes away. If the person who passes away (the decedent) had assets like bank accounts or real estate titled just in his or her name at death, then you’ll need to obtain an order from the probate court before the bank will let you access the money. We offer a free consultation to help you determine whether a probate is necessary and what type of probate might be needed.
Can a Florida Probate Case be Done While Social Distancing?
If a probate is required, what can be done remotely or while social distancing? In many cases, we can help you complete the entire process without you having to leave your home at all. We can assist you even if you don’t live in Florida, as long as the decedent was a Florida resident at death.
If the decedent had less than $75,000 and no creditors, or if more than two years have passed since death, then we can go through a process called summary administration and handle the entire process remotely. We can prepare the documents and have you electronically sign them and can also offer remote notarization for documents that require it, which became valid in Florida at the start of 2020. Once we have the orders we need from the court, we can send them to the bank, and they will send you and the other beneficiaries a check.
If the decedent had more than $75,000 or had creditors, then we would need to go through a process called formal administration. Our office can do everything we need to do entirely remotely. However, depending on the bank that you want to use, you may have to go to the bank to set up a bank account for the estate, which is often required when a formal administration is done. Some banks, such as BBVA, will allow you to do the entire account set up process remotely.
You can read more about probate and the differences between formal and summary administration here.
Can You Use a Loved One’s Probate Estate to Get You Through COVID-19 Shutdowns?
We are frequently asked how long it will be before the family can get the assets that are being handled through the probate. This question will take on additional meaning with the massive disruption that COVID-19 has caused for our economy. It’s difficult to give a good estimate because it depends on a lot of factors, not least of which is how quickly the judge is able to review your file and enter an order. Courts have slowed down, although probate courts have stayed open with staff and judges often working remotely.
With all that being said, 6-8 weeks should be a reasonable estimate for most summary administration cases. For formal administration cases, we can generally get access to funds in the bank account within 4-6 weeks. However, if there are creditors, the Personal Representative (a/k/a Executor) is required to pay them before paying beneficiaries. We often won’t know if there are creditors until approximately three months after the case is opened, at the end of the time period for creditors to make claims. It is possible, but can also be risky, to take money out of the estate before that time. A full analysis of how we attack that problem and the strategies we use to get around it is beyond the scope of this post. Suffice it to say that we always advise clients about the risks and possibilities and will give you practical advice about what to do or how to decide what to do for your case.
Will a Trust Protect Your Loved Ones During a Pandemic?
If the decedent had a trust, then we can advise the Trustee about his or her responsibilities. As with probate, this process can be done entirely remotely, except for banking matters, which depend on the bank. Trust assets can usually be accessed and at least partial distributions made within just a few weeks of the person passing away, and generally the biggest limiting factor will be waiting to get a death certificate, which typically only takes a week or two but will probably, as with everything, take longer under the current circumstances.
Guardianship and Probate Litigation
Sometimes more direct court involvement is unavoidable. This would be the case in probate adversary proceedings—such as proceedings to determine beneficiaries or to contest or construe wills—which take the form of more traditional civil litigation. It would also be the case for guardianship proceedings, which generally require a higher degree of consistent coordination with the courts.
Will Florida Courts Appoint Guardians During the COVID-19 Shutdowns?
Although procedures are being frequently updated, the Florida Supreme Court has required all courts to cancel or postpone any non-essential proceedings until certain phased events are met which permit for more hearings to be handled in person. This of course includes Florida’s Eighth Judicial Circuit, which covers Alachua, Baker, Bradford, Gilchrist, Levy, and Union Counties. Alachua County currently only handles what are deemed essential and critical court proceedings in person, which most of our cases are not. However, the Eighth Circuit has stated that “any hearing, regardless of type, may take place if it is conducted entirely remotely, using telephonic or other electronic means, with no in-person appearance by parties, attorneys, clerks, court reporters, or any other individuals.”
The takeaway is that in all but exceptional circumstances, our matters in litigation will be handled remotely for the time being. Although it is often preferable to be before the court in person, it is not unusual for courts to handle many types of matters telephonically even under normal circumstances. As a result, both the courts and our office are well equipped to handle most hearings remotely during this time.
Having addressed and discussed some of the more common court proceedings we handle and how they can be expected to proceed in light of COVID-19, we now turn our attention to the estate planning side of our practice. In this section, we will discuss some of the estate planning documents we commonly prepare for clients, including the purpose of each document and the signing formalities required to properly execute each.
In light of the safety measures necessitated by COVID-19, it is the signing formalities which are of particular importance here. Estate planning consultations, preparation of documents, and client review of documents and subsequent revisions, as necessary, can all be accomplished remotely, whether by phone or video conference. But properly executing the documents necessarily requires some form of gathering, and each document is slightly different in this respect.
Please note that some of the ideas discussed here do not constitute best practices or legal advice. Instead, they are meant to highlight some of the considerations which must be taken into account during COVID-19. As with any matter, we will carefully consider each client’s unique situation and discuss with them the various options that may be available to accomplish their estate planning goals.
Power of Attorney
A power of attorney is a document which names someone to make financial and legal decisions for you during your lifetime. It doesn’t take away your own ability to make choices, but if you ever are not able to do so, the person designated as your power of attorney can step in on your behalf. Contrary to popular belief, spouses do not have the automatic ability to make these types of decisions. The alternative to a durable power of attorney is a very expensive and time-consuming guardianship. In executing a power of attorney, most people will name their spouse to make these decisions first. The hard choice for most of our clients is, if married, who should make decisions for you if your spouse cannot or, if unmarried, who should be the first person making decisions for you.
A power of attorney must be signed by the principal, or the person making the designation, in the presence of two adult witnesses, each of whom must also sign the document indicating that they have witnessed the principal’s signature. It must also be acknowledged by the principal before a notary.
Designations of Health Care Surrogate
A designation of health care surrogate, which is sometimes also called a medical power of attorney, names someone to make medical decisions for you if you are not able to speak for yourself or make your own decisions. As with the power of attorney, most people will name their spouse to make these decisions first. However, unlike a power of attorney, your spouse has the authority to make medical decisions for you even in the absence of a designation of health care surrogate. Once again, the hard choice for most of our clients is, if married, who should make decisions for you if your spouse cannot or, if unmarried, who should be the first person making decisions for you. Our designations of health care surrogate are customized to our clients’ wishes and are significantly more detailed than forms you might find online or at your doctor’s office.
A designation of health care surrogate must be signed by the principal in the presence of two adult witnesses, each of whom must also sign the document indicating that they have witnessed the principal’s signature. The person designated in the document, or the person the principal has named to make medical decisions for them, may not act as one of the witnesses. In addition, one of the witnesses may not be the spouse or blood relative of the principal. A notary is not required for this document.
A living will provides instructions to medical providers regarding end of life care. Clients often use this document to state they do not want to be kept alive artificially if they cannot communicate and there is no hope of their recovery from a terminal condition, vegetative state, or end stage condition. This is, of course, a personal decision for each client.
A living will must be signed by the principal in the presence of two witnesses, each of whom must also sign the document indicating they have witnessed the principal’s signature. One of the witnesses may not be the spouse or blood relative of the principal. As with the designation of health care surrogate, a notary is not required for this document.
What Remote Execution of Documents Means for Social Distancing
Recent changes in Florida law allow for some estate planning documents to be both witnessed and notarized remotely. The law requires this to be done through specifically authorized software providers. While we can offer remote notarization, our firm has been unable to find any software provider currently allowing for remote witnessing of estate planning documents which meets all of the law's requirements, despite the fact that it is now permitted by law.
Until service providers begin to catch up with the recent changes in Florida law, fully remote execution of these documents will be difficult to put into practice. This gap between the change in the law and practical application of the change is particularly glaring under the circumstances. In some cases, and depending on each person or principal’s living arrangement during COVID-19, signings of these documents could be accomplished without leaving your home. In perhaps most cases, however, this may not be possible. We will be carefully considering each client’s unique circumstances to help come up with the most appropriate solution, whether that means an in office signing or a signing outdoors in a client's backyard or driveway.
Wills and Trusts
As with the other documents described above, Florida law now permits wills and trusts to be executed remotely, but we haven't been able to locate a software provider that meets all of the law's requirements. Until then, if you don’t want to go to a lawyer’s office or to another location that has witnesses and notary, or do not want us to come to you for a signing in your backyard or driveway as described above, then there may still be a way for you to have your will or trust executed. In certain situations, we are willing to prepare the will or trust and provide you with instructions regarding its execution.
Once again, the examples described here are not even close to being best practices. Nothing that follows should be considered to constitute legal advice and should instead be seen as a series of thought experiments.
Technically, the only requirement for a valid will is that the signing of the will by the testator (the person making the will) be done in the presence of two witnesses who also sign the will in each other’s presence and in the presence of the testator. A notary is not required, although a notary will be used by any attorney who has you sign a will because it makes the will “self-proving.” This means that when you pass away, the court will accept it without requiring an oath from the witnesses. The notary is also a great way of proving the identity of the person who signed the will, making it harder to challenge.
As a result, if you happen to be living with two people who are not receiving anything in your will, then you could simply ask them to act as witnesses for you and forego the need for a notary. In the right circumstances, our office would be willing to prepare a will or trust to be executed in this manner, and then we could always bring the client in for a proper signing once everything goes back to normal.
How close do these people have to be to each other for the signing to be valid?
Could your neighbors witness your will through a closed window? Could you stand in your backyard fifty feet apart and watch each other sign?
As noted above, the terminology used in Florida law is that the witnesses must sign the will “in the presence of the testator and in the presence of each other.” Interestingly, the term “in the presence of” has not been clearly defined. The question often turns on whether a direct line of vision is required for the signing or whether the witnesses and testator can be in the same general vicinity and merely aware of the will execution. One Florida court went so far as to interpret the term by analyzing the same term as used in Florida’s lewd and lascivious act statute. The court’s conclusion was that “in the presence of” required someone to see or sense what is taking place. As a result, that court concluded that witnesses being “in the vicinity of one another” at the time of signing—but not in direct line of sight—did not meet the required signing formalities.
The takeaway here for the purposes of COVID-19 is that although all parties would need to be in view of one another during a will signing, a bare minimum signing could conceivably take place while adhering to the CDC’s social distancing guidelines.
Estate Planning Gets Complicated in the Wake of the Coronavirus
Here are a few more examples in which more complicated issues might arise. To be clear, it’s extremely unlikely that our office would be willing to prepare a will or trust for use in either of the following situations, but they are still interesting to consider:
Suppose I’m in self-quarantine and I also happen to be someone who is at risk if I contract COVID-19. I have a brokerage account with $1 Million in it that is just in my name with no beneficiaries designated. I live with my unmarried partner and my good son. My bad son has a drug problem. I want my sons to split everything equally, but I want my good son to hold the money in trust for my bad son and use the money for his benefit rather than giving him cash that he might spend on drugs. If I don’t have a Will in place, my bad son is going to get $500k, and it will be wasted and likely even endanger his life.
As a result, the first possibility for an at home signing is that you can do a Will that’s not self-proving so that you don’t need a notary. It’s still valid, it just means there’s an extra step for your family to go through when you pass away. This would work well if you happen to be living with people who are over eighteen and can serve as witnesses. In the example above, I could sign a will that my good son and my partner sign as witnesses, and it would likely be valid. My bad son might claim that I was unduly influenced to leave his share in trust or to put my good son in charge of his share but given the situation, he might not prevail on this argument.
Let’s change the example to make the example a lot worse. Let’s suppose instead that I want to leave my bad son nothing. Instead, my partner gets $500,000 and my good son gets $500,000. Could I still have my partner and my good son act as witnesses to this will? Florida law provides that a will is not invalid simply because it is signed by an interested witness. This means that a beneficiary may act as a witness. However, this is far from a best practice and can make the will very susceptible to a challenge which could ultimately invalidate the will.
To illustrate, someone attempting to challenge a will based on undue influence can create a presumption of undue influence by showing that a beneficiary under the will possessed a confidential relationship with the decedent and was active in the procurement of the will. One of the first elements in assessing the “active in the procurement” question is whether the beneficiary in question was present at the execution of the will. Thus, when a beneficiary is also a witness, an individual challenging the will may already be on their way to establishing a presumption of undue influence. Although this presumption could be rebutted, or disproved, it is certainly not a desirable position to be in when trying to uphold an otherwise valid will.
This is just a snapshot of some of the services we offer at Harrison Estate Law, together with the considerations that we and our clients must take into account during this difficult and uncertain time. Above all else, we hope for this difficult situation to improve as quickly as is reasonably possible. In the meantime, we will continue to tailor our services to make sure we are well equipped to safely and effectively assist you. Please contact us online or via email or call 352-559-9828 to schedule a free consultation. If you don’t live close to Gainesville or would prefer not to come to our office, we are happy to set up a phone or video appointment.