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Protocols for Estate Planners During COVID-19

By Joan C. Skrzyniarz posted 03-19-2020 12:30

  
​Note that this blog was written before the issuance of Executive Order 2020-41 which allows for remote witnessing and notarization. 


Because of the challenging weeks ahead, I wanted to share a sample protocol that my firm is using. We think it will help to protect yourself, your family and your clients.  We are all driven by client service and can continue to deliver superior service, but we need to recognize the way in which we do so will likely have to change, at least for now. Here are some thoughts and suggestions for trying to continue assisting our clients during the next several weeks.

  

Client meetings: 

 No in-person meetings. All client meetings should be conducted over the phone or using FaceTime. This is especially important given that we have a large number of clients who are considered to be in the high-risk category (over age 60 and/or with heath issues). 

 

Delivering client documents:

  •  All documents should be delivered by email in PDF format, if the client has the ability to receive emails. 
  • If a client does not have access to email
    • print and mail their documents, if you have remote printing capabilities.
    •  use a third party courier, if available, subject to whatever protocols they are instituting. This should be a last resort, and may not be an option at all. Fed Ex is still picking up and delivering packages, as is the US Post office.
  •  Remove unnecessary notary blocks and witness signatures. Minimize the number of individuals that are required by law to properly execute documents. 

 

Client signings:

  •  Client has email. Send PDFs and signing instructions to execute their documents.  If possible, be on the phone with the client when they sign their documents to give verbal signing instructions and to recite required statutory execution language.  Memo the file after the signing ceremony. Have the clients scan or text a picture of the signed document to you.  Make sure the client tells you where their original documents are being kept, and memo the file with this information.
  • Client does not have email. Mail the client their documents. Mark each place the client needs to sign.   If possible, be on the phone with the client when they sign their documents to give verbal signing instructions and to recite required statutory execution language.  Memo the file after the signing ceremony.  Have the clients scan or text a picture of the signed document to you.  Make sure the client tells you where their original documents are being kept, and memo the file with this information. 
  • Client unable to meet statutory requirements. If, for example, the client is in hospital and no visitors are allowed, you may wish to consider the following options:

 

    • Remote signing. Set up a conference call with the client and another witness and conduct the signing ceremony remotely using video conference or FaceTime.  Have the client and each witness print documents and execute signature pages separately, and memo the file with all of the details of the remote video signing.  This is non-traditional and may not be enforceable, but could later be argued as a writing intended as a will (MCL 700.2503), explained in further detail below.
    • Holographic will under MCL 700.2502. Dictate over the phone or email the provisions for the holographic will to the client and have the client write the will in the client’s own handwriting, sign it and date it. Consider having the client videotape themselves signing the will, and send you the video. If the client does not have the ability to scan the document to you, have them take a picture on their phone and text it to you.  Make sure the client tells you where their original documents are being kept, and memo the file with this information. Consider including a testamentary trust as part of the client’s will, if it is appropriate to meet the client’s wishes.
    • Writings intended as wills under MCL 700.2503. If your client does not have the physical ability to make a Holographic Will, review the requirements under MCL 700.2503, and advise the client on trying to meet those statutory requirements.  By way of example, if the client has access to email or texting:
      • email or text the client their will
      • Client responds to your email approving the Will and stating it meets their intentions and they intend the document to be enforceable
      • Call and confirm all of this verbally with the client, along with another witness/notary
      • Consider having the client videotape him or herself confirming the writing intended as a will, and send you the videoclip
      • Memo the file regarding all of the above
    • Client without the physical ability to text or email. Consider an oral trust under MCL 7401 (i.e. a declaration by the client to create a trust), and review MCL 700.7407 and Michigan case law which states that the creation of an oral trust and its terms may be established only by clear and convincing evidence. Consider having the client videotape the making the oral trust. A recorded phone call or audio or video memo to you might be an option as well.  Write down the terms of the oral trust as the client states them, declare that to be what you heard the client say, and sign and date that declaration.  Have the client later sign (once COVID-19 has subsided) to confirm if possible. Registration procedures for an oral trust are found at MCL 7210(1)(c).  
    • Evidence intent. If none of these measures will satisfy statutory execution requirements given your client’s circumstances, then do the best you can to evidence the client’s intent with a goal of being able to argue intent if the client dies or becomes disabled before later executing enforceable documents.  Given the sweeping effect of the social restrictions, courts of equity may be more lenient in allowing exceptions to statutory requirements.
    • You have to meet with the client. There is a true emergency where you feel you need to meet with a client who is still physically able to meet you
      • Meet the client outdoors, maintaining a 6 foot distance from the client, i.e., in separate cars in a parking lot or driveway.
      • Make sure the signature line for each individual is on a separate sheet of paper, so that there will be no passing around of signature pages.  Each individual only signs his or her own page.
      • Everyone brings and uses his or her own pen.  Everyone keeps their own pen after the signing.
      • Give the client all of the executed signature pages.  Everyone should sanitize hands after touching the paper.  Ask the client to take a photo of, or scan, each signature page after they return home to send to you for your file.  There are many apps available for phones that convert photos to PDFs.

 

Let the client know in writing that if they are unable to properly execute the documents in accordance with statutory requirements, these documents may not be enforceable under law, but that given the time at hand, this is the option that we are suggesting in lieu of meeting statutory requirements.

 Be very hesitant to take on cases where clients insist on disinheriting family members as the matter could be more easily contested if normal signing requirements cannot be met.

 Best of luck to all of you as you work diligently to assist your clients.

 


#Covid-19
#Probate/EstatePlanning
#Elder
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