This article originally appeared on Citybizlist as part of a series featuring Burns & Levinson attorneys helping businesses and individuals navigate the many challenges that COVID-19 presents.
Q. From an estate planning perspective, what are the biggest concerns you are hearing from your clients regarding COVID-19 and the turmoil it is causing? What can people do to prepare?
Fletcher: There are two main concerns I am hearing from clients – either they have not done any estate planning, or they have been meaning to make changes to their existing estate plan and have not gotten around to it yet. The good news is it’s not too late to reach out to their estate planning attorney and begin the process. This usually involves drafting a will, trust, health care proxy, and power of attorney; reviewing title to assets; and updating beneficiary designations.
Q: If you have a family owned business, should your succession plan be modified to accommodate the potential for multiple deaths within your family and still assure the continuity of business operations?
Fletcher: I have not had any clients express this concern. However, estate plan documents do take into consideration the “worst case scenario,” which is what happens to your assets if none of the named beneficiaries are living. People are paying more attention to that clause nowadays as the possibility of it seems more real. For a family-owned business, the question is always “who will be there to turn the lights on?” If the corporate documents do not provide for that person, then we look to who actually owns the business interest. Typically, if the stockholder of the business dies, the stock will then be controlled by the estate or a trust if the stockholder established one.
Q. Should individuals review, and potentially revise, their last will and testament or living trust? What coronavirus-specific concerns should be addressed?
Fletcher: People should definitely review their will and trust. Whether or not to revise them will depend on whether or not they are satisfied with the current terms. In light of the coronavirus, anyone with children should pay particular attention to the guardians and trust terms of their documents.
Q. What about durable power of attorney or advance directives? Should changes, or at least reviews, be made to these documents?
Fletcher: This is a good time to evaluate health care proxies and powers of attorney to make sure they are current and consistent with each person’s intentions. If the documents are old, consider executing fresh copies. Particularly with powers of attorney, financial institutions want to see documents that were executed fairly recently. If your power of attorney is 10 years old, execute a new one.
Q. If you have Coronavirus and have not properly prepared your estate, can you still get legal work done without risking the spread of the disease to your legal team?
Fletcher: There are many options for signing documents. The first step is to contact your attorney and get the documents drafted. Once the documents are ready to be signed, if you are still under quarantine you may be able to sign the documents on your own. There is also legislation pending that would allow attorneys to virtually notarize documents and conduct will signings during this period so that may be a possibility as well.
Q. What happens when someone dies suddenly without a last will and testament? What do their family and/or beneficiaries need to know?
Fletcher: If someone dies without a will, the state law will dictate who receives their assets. Your attorney can advise you on how the assets will pass in your particular situation. Be aware that a will only covers assets that were held in someone’s name alone. If there is a surviving joint owner or a named beneficiary, those assets pass by operation of law to the surviving joint owner or named beneficiary.