The COVID-19 pandemic understandably has people reviewing their estate plans – or in some cases, finally getting down to starting the estate planning process. It has become even more important for people planning their estate to do so in a way that will avoid probate.
Now is the time to make sure you are taking the pandemic, or any unexpected event or state of emergency, into consideration.
1. Probate courts are limited
Due to the pandemic, the Massachusetts Supreme Judicial Court issued an order that all courts of the Commonwealth will be closed to the public, except where entry is required to address emergency matters that cannot be addressed virtually.
With extremely limited operations, it can be quite difficult to complete the probate process. Without that process, your personal representative will have difficulty passing on assets that should go through probate.
It is common for people in normal circumstances to rely on “remaining” and “residual” provisions in their wills to transfer any remaining assets to an individual or into a trust upon their death. Without the probate courts functioning as normal, it may not be possible for those assets to be transferred. The assets should not be distributed until after the probate process is completed. Your heirs might not be able to recover their inheritance for an indefinite period of time.
By using trusts in your estate planning, and fully funding those trusts, you can help your personal representative to avoid probate and distribute assets of your estate.
2. Witnesses might not be available
For those relying on a will to distribute their assets, executing an estate plan during a pandemic may be difficult because a will requires witnesses and may not allow one to avoid probate. Finding available witnesses during any state of emergency or health care pandemic can be a difficult prospect.
Massachusetts and many other states will allow people to develop or update revocable trusts without needing witnesses. The creation or amendment of a trust itself has no bearing on witness or notarization requirements. When transferring assets into the trust, notarization may be needed, depending on the type of asset. Massachusetts allows remote notarization with digital technology during the pandemic.
3. Possible problems with a healthcare proxy / power of attorney
Power of attorney and healthcare proxy matters have become more important and complicated during the pandemic, especially for COVID-19 medical care. A common treatment for the virus involves hooking the patient up to a ventilator and this may involve inducing a temporary coma, rendering the patient unable to act and make decisions on their own behalf.
By using a revocable trust, you can include language that automatically transfers power of attorney responsibilities to your trustee. A successor trustee may be named if your primary trustee cannot act in the position.
By incorporating a healthcare proxy in your estate plan, you may designate a person to make medical decisions on your behalf if you become incapacitated.
Avoid Probate and Plan for the Unexpected
COVID-19 was unexpected. There could be future events that make the estate probate process both time consuming and difficult. By using revocable trusts and planning your estate, your estate can avoid probate processes and be much better prepared should something unexpected happen.
Baker Law Group can help plan your estate so that your assets are protected on behalf of your beneficiaries, and available without going through the probate processes. View attorney profiles.
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