Estate Planning in Uncertain Times

Lyons Gaddis COVID-19 Alert

This Alert is one in a collection of articles created by Lyons Gaddis in our effort to get important information to our clients regarding the effect of the novel coronavirus (COVID-19) outbreak in the United States.  This Alert focuses on estate planning issues during the current crisis.

April 1, 2020
Estate Planning in Uncertain Times
by Jennifer M. Spitz

The current health concern with COVID-19 highlights the importance of having proper estate planning documents in place to plan for death or incapacity.  This is a good time to start the process of working with an attorney to prepare estate planning documents for you, such as a will, a living will and powers of attorney. 

It is important that your estate planning documents be carefully prepared and also signed in compliance with the law. The laws regarding execution of estate planning documents were designed with the expectation that the documents would be signed in paper form (not electronically), in the presence of a notary and, in some cases, with two witnesses.  Without following these formalities, these documents may not be valid at all, or there may be extra hurdles involved with having the documents recognized.

However, in light of the current stay-at-home order, meeting in person with two witnesses and a notary is difficult, if not impossible.  Recognizing this fact, the Colorado Secretary of State issued temporary rules on March 30, 2020, that facilitate signing documents with a remote notary.

Executing estate planning documents remotely does require specific procedures to be followed, which in many ways are more burdensome than signing documents in person.  See our discussion of the topic in the Lyons Gaddis COVID-19 Client Resource Center for a description of the temporary remote notary requirements.

With respect to wills, there are additional complications.  Along with other requirements, the Colorado statutes require that the will must either be executed with two witnesses or a notary, or material portions of the will must be in the testator’s writing.  The witnesses must be in the “conscious presence” of the person signing the will (the “testator”), which requires physical proximity.  Ideally, the will should be executed with two witnesses and a notary, because the will is then a “self proving” will.  A self-proving will is presumed to have been validly executed, which makes it less susceptible to challenge after death.

The recent rule change issued by the Colorado Secretary of State does not change the witness requirement.  Witnesses cannot witness a will signing remotely.  If it is not feasible to have two witnesses present, a will can be signed with just a notary (including remote notary).  In that case, the will can be valid but not self-proving. 

However, in addition to complying with all of the other remote notary rules, the temporary rule change also requires that the original will be given to the notary within fifteen days after execution.  Then, within three days of receiving the original will, the notary public must confirm that it is identical to the one that was remotely notarized and, if so, stamp it with the notary public’s signature and seal.  If these steps are not carefully complied with, the notarization is not valid, which could result in the will being invalid, especially if there are no witnesses to the will.

At Lyons Gaddis, we have several experienced estate planning attorneys who can assist you with the estate planning process.  We can work with you to prepare your documents, and determine the best course of action to execute them.

The Estate and Probate Attorneys at Lyons Gaddis are available to advise you in relation to estate planning, remote notarization and other COVID-19 related matters.