Wisconsin estate planning documents need to be properly witnessed. Wisconsin law requires witnesses to be in the “conscious presence” of the person signing a will. That has been interpreted to mean that witnesses must be present with the signer. Not observe the signing remotely through video conferencing. For a document to be notarized, the person must “appear before” the notary. This, too, has been interpreted to mean that a document must be notarized in person.
Many states allow remote witnessing and notarizing of estate planning documents. However Wisconsin does not currently.
Remote witnessing and notarizations would be helpful in the midst of the COVID-19 pandemic. Many of us are being careful to limit in-person interactions. However, information shared by social media and “do it yourself” estate planning websites, can be miss-leading as states have different rules. There is a high risk that people are getting bad information about how to properly execute their estate plan. Even the local newspaper recently printed misinformation that courts will accept a will without witnesses – which just isn’t true.
It is critical to work with a legal professional in the state where you reside. A Wisconsin resident could read this AARP article or the Journal Times article pictured above and use one of these do-it-yourself legal website or a template. As a result, the documents would not be valid without an appropriate witness/notary (Even with a remote witness).
With all this in mind, The State Bar of Wisconsin’s Real Property, Probate, and Trust Law Section filed an emergency request for a temporary order that would permit remote witnessing of certain estate planning documents in light of the COVID-19 pandemic.
However, the Court declined to issue an emergency ruling.
This is disappointing, but attorneys across Wisconsin will persist.
Since the COVID-19 pandemic first appeared in Wisconsin two months ago, lawyers across the state have been working hard to make sure our clients can safely execute their estate planning documents.
Due to safety concerns for our clients, Rebecca Mason Law is meeting by phone, FaceTime, and even Zoom. We share drafts electronically. We are conducting signings curbside outside our firm – or standing by the curb outside your home and observe you while you sign from the comfort of your own front porch.
Pubs in Ireland closed two days before St. Patrick’s Day. Schools and businesses across Wisconsin, the United States, and the world are closing. Professional and college sports have been cancelled. In Wisconsin, courts are closing until at least April 30 for many types of legal actions. While in situations like the grocery store, people are trying to impose some sort of social distancing protocol.
Now is not the time to panic. But it is the time to prepare. We are facing an unprecedented situation. It is difficult to know what to do and hard not to feel at least a little scared. The Coronavirus / COVID 19 seems to be taking over the entire globe at a rapid pace.
Estate Planning While Social Distancing
of us have a hard time sitting still in times of crisis. We like to do something to make the situation
a little bit better – for ourselves and for our community.
As a lawyer who specializes in estate planning and probate, I strongly recommend the following to be better prepared while you are social distancing yourself from others.
Make sure you have a Health Care Power of Attorney that is ready to work for you.
A Health Care Power of Attorney names a person who will advocate for your medical care if you become incapacitated.
You have the right to decide the quality
of life you want. Your Health Care POA
is the best way to direct your medical care if you are incapacitated.
If you have a Health Care POA, review it
and make sure the person you name as your agent is ready, willing, and able to
be your advocate. Make sure you have a backup
named who is also ready, willing, and able.
Upload it so you can access it on your phone. Email it to your agents and your
doctors. Carry a note in your wallet
with their contact information.
If you do not already have a
Health Care Power of Attorney, I strongly recommend you contact an attorney who
specializes in this area of law and schedule a phone appointment to get the
process moving. It is always better to work
with a professional with experience in this area of law. You will end up with a better product and ensure
that it is executed correctly. I have
seen many power of attorney documents that were not properly executed – which
becomes problematic if you are incapacitated and need someone to advocate for
However, if you are not able to meet with an attorney or cannot afford one, and if are a Wisconsin resident, you can download a state form here: Wisconsin Department of Health Services. I assume many other states have their own form. In Wisconsin, your Health Care Power of Attorney needs to be witnessed by two people. The witnesses must be over 18, neither can be your health care professional and neither can be named as your agent.
Execute a Revocable Living Trust (a “Trust”).
Having a Trust and avoiding the costly delay of a court-run probate just got a whole lot more important.
As health professional instruct us to stay home as much as possible. We do not know how the court system is going to function over coming months. If you are relying on a will (or don’t have an estate plan), your loved ones will likely have significant delay in accessing their inheritance as they wait for the courts to probate your estate.
In contrast, a Trust is a private
contract between you and your loved ones.
When you pass, your Trust assets seamlessly pass to your loved ones
without the hassle of the courts. If you
lose capacity, your successor trustee can step into your shoes and manage your
financial affairs. And while you are
alive and have capacity, you retain full control over your Trust assets.
You need to work with a professional to create and fund your Trust to ensure that it is done correctly. Too often I have clients come into my office thinking everything was handled because their deceased loved one had a Trust – only to find out that the assets were never put into the Trust and we have to go to court to probate the assets.
Check your beneficiary designations.
Financial assets and property can be transferred outside of probate through beneficiary designations. You can name someone to inherit your life insurance policies, your retirement accounts, and your bank accounts. You can also name someone to inherit your home and avoid probate of a significant asset.
designations can be a good way to transfer wealth and avoid the uncertainty of
the courts, there can be significant problems with relying on beneficiary
designations. The main problem with
relying on beneficiary designations instead of a Trust is that they do not
easily accommodate contingencies if a named beneficiary dies before you and
your estate might end up in probate anyway.
Many people are mistaken about who is actually named as their beneficiary. Maybe you set up your retirement account when you first got your job and before you were married. You could be disinheriting your spouse unintentionally.
Beneficiary designations are
also difficult because the person inheriting has to know they are the
beneficiary and what company to contact to obtain the funds.
If you are relying on beneficiary designations, double check to make sure the right people are named. It usually a simple process of calling the financial institution where your funds are held and asking them. I recommend asking them to mail you a confirmation as well so that you can give a copy to your beneficiaries.
Social Distancing: At least for the time being, life has changed significantly.
While we make sure we have enough food and figure out how to exist while social distancing, we can also make sure that our estate is in order. It seems that life is about to get a lot more difficult. But you can take some action to make sure that if things get really bad, your medical wishes will be followed and your estate is kept out of probate.
As the Coronavirus has progressed, there has been an increase in the number of people contacting our office to ensure their affairs are in order. All the media attention seems to have put estate planning back on the top of their to-do lists.
There is no way to know how the coronavirus will impact us in the long-term. But it sure has become impossible to ignore. Even my 8-year-old came home from school asking about it.
There seems to be no end to the advice. Don’t shake anyone’s hand. Press the elevator button with your knuckle. Wash your hands for at least 20 seconds. Stock up 3 weeks worth of food and medicine.
But is there anything you should be doing from a legal perspective during the Coronavirus outbreak?
Yes: You should review your estate plan. But not just because of Coronavirus. Estate planning is always important. And it is frequently something that gets de-prioritized. So I am hopeful that an upside to all this media coverage will be that it drives more people to create or update an estate plan.
If you have an estate plan, review it. Make sure it still accurately reflects your wishes. Importantly, make sure that the person you designated as your Agent in your Health Care Power of Attorney is still the right person. Your Health Care Agent ensures your wishes are honored in the event you lose the ability to do so. These documents give you the final say on your health care decisions and the quality of life you want. For many, this is the most important document in your estate plan.
Similarly, make sure that the person you name as you Agent on your Financial Power of Attorney is still the right person. This agent will help you with handling your financial affairs if you lose capacity.
As part of your estate plan review, it is also important to make sure your Personal Representative or Successor Trustee is able to serve and is still the best person to help you and re-evaluate the person you name to be Guardian of your minor children. It is also helpful to review your beneficiary designations and, if you have a trust, make sure your assets are owned by your trust.
And if anyone named in your documents has predeceased you, it is time for a revision.
If you are like many and don’t yet have an estate plan, perhaps now as we consider the Coronavirus it is a good time to put it closer to the top of your to-do list.
“You must live in the present, launch yourself on every wave, find your eternity in each moment. Fools stand on their island of opportunities and look toward another land. There is no other land; there is no other life but this.”
Henry David Thoreau
A little earlier this summer, we took our kids to Door County for the weekend with a group of friends. The pilgrimage to Door County seems to be a standard for many families. And this is for good reason! It is beautiful, restful, and there is some kind of magic that seems to always happen there that rejuvenates you and allows you to reconnect with your loved ones.
During this year’s trip, we took our kids — 7, 8, and 10 — cliff jumping at the Sand Dunes State Park. So we literally got in the car and drove about an hour to tell our children to jump off a cliff. It was my first time and theirs. If you’ve never been, please know: that last step right before your first jump is utterly terrifying. But the plunge into the water is exhilarating.
In my law
practice, I help people plan for their death and ensure their assets are
properly distributed to their loved ones after they pass. We walk a difficult walk alongside many. We get to know our clients and their families
as they struggle through some pretty tough times.
Given my day job,
it’s probably not surprising that as I stood at the top of the cliff before
taking my first plunge, I paused to reflect and was comforted knowing my family
would be OK because my affairs were in order.
You know, if I did not survive when I defied my mother’s advice and
actually followed my friends and jumped off that cliff.
Holding the hands of my daughters, we counted to 3. And then we jumped, continuing to hold hands as we leapt off sturdy ground and launched ourselves through the humid summer air into the frigid Lake Michigan waters. As I resurfaced to the sounds of their shrieks of laughter and pure joy, I absolutely found “my eternity in [that] moment.” We have all had those moments. And may we have many, many more.
Most people put off estate planning because we don’t want to think about or talk about our death. It does no good to live in fear of the inevitable. I was reminded of this quite clearly as I prepared to jump of that cliff. In knowing your affairs are in order truly gives you peace. I am not ready to die. I do not want to die any time soon. Yet, we can’t control when that will happen. (Although my mom would say, choosing not to jump off that cliff makes it less likely to happen that day.)
But you can make sure everything is in order so that you can be confident in taking (calculated & safe) opportunities to “live in the present, launch yourself on every wave, [and] find your eternity in each moment.”