Estate Planning, Administration, and Probate Practice During a Pandemic

Whether an attorney is faced with a surrogate that lacks the ability to accept and file pleadings, a struggle to notarize necessary administration documents, or clients calling in a panic to update documents, attorneys are having to work fast to find solutions in the “new normal.”

In some instances the Courts are mandating the procedures.  For example, the Atlantic County Surrogate is providing language to insert into Orders to Show Cause to accommodate filings and the possibility of remote appearances.  Additionally, the federal government and some states, including New Jersey, as of April 1, 2020, have extended income and estate tax filing and payment deadlines into the summer  (Note, as of the date of publication tax payments in NJ are still due on April 15).  Finally, the New Jersey Legislature is also attempting to accommodate individuals by way of A3864/S2299, a bill that recently passed both the Assembly and Senate, and allows for remote notarization.  However, the bill is not effective until 90 days after signing, applies only to public notaries (not attorneys), cannot be used for wills and codicils, and as of this writing, still sits on the governor’s desk awaiting his signature.

The gist is that estate administration and litigation attorneys can still do most of what they have always done, albeit much of it remotely.  Indeed, if the remote notary bill passes, powers of attorney and advanced medical directives can still be notarized.  Wills need only be witnessed to be valid, and could even be admitted to probate without witnesses as “a writing intended as a will” provided that the testator reviews and assents to its terms in accordance with case law and N.J.S.A. 3B:3-3.”

Finally, as the dust settles, practitioners will consider how pandemics and novel viruses will impact planning moving forward.  For many – as unfortunate as this situation is – it makes clear that a person needs to have a plan in place – no matter what their age or position in life.  While it appears that those over 60 suffer the direst of COVID-19 consequences, the 1918 H1N1 virus did not discriminate – it severely impacted nearly all ages, from the very young to the elderly, and such a virus could appear again.  And we’ve learned things can happen fast.  In a span of three weeks, COVID-19 was something that was happening over there – whether it was in China, Italy, or even Washington.  Within a matter of weeks more than 200,000 people in the U.S. have tested positive as of this writing – our own state being one of the more severely affected thus far.

The point is this: our clients need to plan.  While some really terrible things will come from this virus, some things we can be grateful for will result as well.  One of those things, hopefully, will be clients who understand that estate planning is not something that can wait and that it is vitally important to them and to their families.

That said, attorneys also need to plan.  This particular crisis will end, but there will certainly be another.  Furthermore, clients’ expectations will likely be changed by this experience and they may want more remote services even without a shelter-in-place order.

There were already whispers of this before:  Some states have enacted electronic will statutes (e.g.  Nevada and Indiana), and in late-2019 the Uniform Law Commission finalized the “Uniform Electronic Wills Act.”  Considering the pandemic, will more states follow suit?  Absent such a statute, attorneys will need to decide how to do signings remotely and develop protocols for helping clients with executing documents properly when the attorney can’t be there.  This might mean getting ourselves and our clients familiar with online meeting platforms or using trusts more often to bypass execution requirements.

Also, how can we access client information when we can’t get to the office?  What software can help?  Is it secure?  Further, does drafting need to take into consideration novel illnesses?  For example, advanced medical directives allow clients to refuse the use of experimental treatments in the event the signor suffers a terminal condition, and they typically do so.  Arguably a 60 year old, with COVID-19 who is on a ventilator could have a terminal condition, but this could be a situation where that client would want an experimental treatment.  Furthermore, while the appointed representatives have the final say, how can we be assured that they are being contacted by medical providers when families aren’t allowed to visit their sick relatives?  These are just a few of the questions that will need careful consideration moving forward.

While this time is difficult at best, it is also an opportunity for change and growth – not only for clients and potential clients, but for attorneys and firms as well.  I’m proud to say that Archer’s attorneys have risen to the challenge and are ready to meet clients’ needs.  Thanks to our incredible support staff and strong and nimble firm leadership we are well-equipped to draft and modify documents and assist in any administration or litigation needs during this crisis.  Additionally, Archer has established an inter-disciplinary COVID-19 Task Force to guide clients through these unprecedented times.