Without a doubt, COVID-19 has imposed a burden on every aspect of life. The restrictions put in place to protect us from it have also affected our lives. One area particularly impacted has been the capacity to execute estate planning documents. For an unfortunate many, COVID-19 has taken the lives of loved ones. For these families, restrictions also have impacted access to the probate process. This article discusses the impact of these restrictions and how the impact of restricted access to the courts could have been avoided.
Experiencing a death in the family is difficult. It can place an emotional, physical and financial burden on the surviving family members. Even when a death occurs under the most normal circumstances, it can turn the lives of surviving family members inside-out. And if you are the family member named as the executor for the decedent's estate, it is especially difficult to mourn the loss of your loved one and still focus on your responsibilities as executor, many of which happen right away.
Now add to the equation a global COVID-19 pandemic that forces the probate court process to shut down entirely or implement significant restrictions to access and you find yourself with not only a lot of questions but possibly a lot of unanticipated expenses, which could have been avoided.
An executor, also known as a personal representative, is responsible for the administration of the decedent's estate upon their death. The administration of the estate normally takes place in a court process called probate. The probate process allows the court to oversee and approve the administration of the estate and the distribution of the decedent's property.
The executor has many important duties to fulfill during the probate process. In fact, the executor is responsible for starting the process. To do that, there are certain things that the executor must do right away.
Here is a list of duties that the executor has from the time the decedent dies until the court approves the administration of the decedent's estate and closes the probate process on the estate:
- Obtain the decedent's death certificate
- Locate the decedent's will and other estate planning documents
- Compile all assets and debts
- Notify creditors and beneficiaries
- Pay taxes
- Transfer title
- Distribute property
- File an accounting
The normal probate process can take months or sometimes years to complete, depending on the nature of the estate. Every delay or interruption in the process can add months to the final administration and stress to the family members. As if the process were not difficult enough, just as so many industries and government agencies have experienced recently, the current COVID-19 restrictions have imposed additional hurdles and have brought the probate process to a near standstill.
Together, the virus and the restrictions against it have had a significant impact on estate planning during life and probate filing after death. In both cases, families have had to make adjustments. Because of quarantine restrictions and social distancing, those who want to complete their estate plans with their attorney have had to find alternative means for executing documents. These have included:
- Limiting contact with the attorney
- Electronic signings and notarizations
- Using online services
- Do-it-yourself documents
- Do without
For those who have been able to execute documents with their attorney, procedures have had to change. Perhaps testators and witnesses have to remain in different rooms but are able to observe the other sign. For some, the only contact with their attorney is through telephone.
Before the pandemic arose, several states had adopted the Uniform Electronic Wills Act, allowing for online signing of estate planning documents and minimizing the physical interaction of the parties. When COVID-19 took hold, state governors issued executive orders temporarily allowing for remote online notarization (RON) to assist with the execution of estate planning documents during this time of restriction. RON allows parties to notarize their signatures remotely from other parties through a two-way audio and video connection. Documents are signed and stored online.
There has been a significant uptick in the use of online estate planning services, especially since the coronavirus hit. Although these services are useful, they too can affect the nature and quality of the legal advice one receives when in executing their documents.
Many have resorted to simplifying their estate planning documents and just doing it themselves. Of course, this limits the scope and effectiveness of the documents because these tend to be done without, or with minimal, legal advice.
Unfortunately, there are some for whom these accommodations are not sufficient. Many older people restricted to care facilities or incapable of the technological necessities for executing documents electronically must go without further estate planning.
Despite the necessary restrictions to protect against the virus, most wishing to execute estate planning documents have been able to do so. In fact, if these restrictions lead to procedures that serve as workable conveniences, you can expect to see more states adopting electronic wills and RON provisions as commonly available for executing estate documents.
With the COVID-19 restrictions still in place in every state — to a greater degree in some more than others — they naturally have presented difficulties for families who have lost loved ones either to or during the virus. Across the country, probate courts are either closed or operating at a significantly reduced capacity — often on an emergency basis only. As a result, families who have lost loved ones have not even been able to file for probate. This has led to several problems:
- No authority to act
- Accumulating expenses
- Increased family tension
Assuming you have your loved one's will and you know that you have been named as the executor, there is little you can do to administer the estate without express authority from the court, and for those whose probate court is closed, there are no other options once your loved one has passed. any power of attorney you may have held before your loved one passed away terminated upon their death. Absent some other legal authority to act on behalf of the estate, all you can do is wait for your court to open or begin operating to some degree.
If the court is closed and, therefore, has not officially appointed you as executor, you will have difficulty accessing your loved one's accounts, cancelling services and utilities, paying debts or disposing of property, such as a house, car, and personal belongings. As these items continue to process, expenses can increase quickly. Many families have been waiting months just to be granted authority to act, on top of what already is a very lengthy, burdensome and frustrating process.
It does not matter if being quarantined to your home is a welcomed relief from work or a major imposition, it is still stressful either way. For a family that just lost a loved one, there is additional stress. To make matters worse, the COVID-19 restrictions have interfered with your ability to settle your loved one's estate. Perhaps your loved one's house is sitting empty and needs to be maintained; perhaps family members have their eyes on certain items of property, but you are unable to rely on the terms of your loved one's will. With every day that goes by, your family feels the weight of your loved one's unsettled estate.
Even where some courts have operated on a reduced workload or schedule, initiating the probate process during COVID-19 has been difficult at best. Many courts limit services to emergencies or absolutely essential probate matters for existing cases on the docket (the court's schedule). New probate cases are often denied access to the process during the pandemic.
Additionally, not all courts are prepared to accommodate electronic filing of petitions. For those that are, there are usually limitations. For example, many courts' Register of Wills announced that for “virtual” or electronic probate services, the following is required:
- Because services are available only through video conferencing, persons must have a computer or smart device with video conferencing capabilities.
- Required documents are only accepted by USPS overnight certified mail.
- To receive probate services, you must be represented by counsel; you cannot represent yourself in virtual probate services.
- All appointments are required to be scheduled via video conferencing.
Although these requirements allow for some access to the court and the probate process, it is a narrow window and many are turned away.
What's more — at the peak of the pandemic in many places, families are even restricted in their ability to gather together to bury and mourn their loved one at a funeral. For loved ones who died from COVID-19, even having a funeral has become a question.
With so much unknown about the COVID-19 virus, many question whether persons who die from coronavirus are contagious after they die. As a result, special protocols were implemented for every stage of the management of dead bodies, raising issues over:
- Risk of exposure
- Handling the body in the hospital
- Respecting cultural and religious traditions
- Requiring cremation
- Proper and timely disposal of bodies
- Properly investigating the cause of death
- Preparing the body for transport to autopsy unit, mortuary, crematorium, or burial site
Guidelines issued by the World Health Organization even restrict post-mortem handling of the body, funeral gatherings and traditional ceremonies. For example:
- Families may only view the body; they may not touch or kiss the body.
- Embalming may be prohibited or restricted to avoid excessive contact with the body.
- Elderly (over 60), children and immunocompromised persons may not have direct contact with the body.
- People who have died from COVID-19 must be buried following national and local requirements for the handling and disposition of remains.
- Those who place the body in the grave or on the pyre must wear gloves.
- Funeral ceremonies not involving the burial should be canceled; where allowed, participant numbers should be limited.
Despite all of these limitations and restrictions, there is no scientific evidence available that concludes that cadavers (dead bodies) remain contagious of any viruses or diseases. When confronting the unknown, however, these strike as necessary but emotionally painful precautions.
Once your loved one has been laid to rest, the limitations upon the executor to properly administer the estate only continue. Restrictions on the probate process have been implemented in every state and have ranged in degree of limitation, including:
- Complete closure
- Existing cases
- Essential issues
- Virtual access
- Representation by counsel
Whether you view these procedures as limitations or accommodations, the issue of the effect of COVID-19 on the estate planning and probate process is one of access. As a testator seeking to finalize end-of-life legal documents during life, you need access to your attorney, witnesses, notaries and family. As the executor of an estate that requires probate after death, you need access to legal documents, property, financial accounts and, necessarily, the court.
What can you do as an executor to gain access to the court and to all the other resources required to administer your loved one's estate? Here are a few options to consider:
- Consult with an attorney
- Take advantage of virtual or electronic filing
- Take whatever legal actions you can to prepare for probate
As the COVID-19 pandemic grew, access to courthouses all over the country changed on a daily basis. Rules and procedures were implemented and varied from county to county. Accommodations were implemented inconsistently. To fully understand what access to the court is available to you, you should consult with an attorney. They can advise you on the appropriate steps to take to begin the probate process, if it is available at all.
You should take advantage of every opportunity for access that is available. If you do not have the capacity to participate virtually, an attorney will be able to assist you.
If you have legal authority to access your loved one's property, you should begin to collect all legal documents, organize bills and notify relevant family, friends and financial institutions. If you do not have legal authority but another family member does, ask for permission to begin what you can.
Once your loved one has passed away, without access to the court and the court's express authorization to undertake the duties of executor, there is not much else you can do to facilitate a final administration of the estate.
There is nothing any individual can do to avoid a global pandemic. But there are estate planning resources available that can help you avoid the impact of the restrictions placed upon you if another crisis occurs of the magnitude of the current crisis.
Just as there are legal instruments available during life that provide access to a loved one's personal property and decision-making authority, there also is a resource available that provides access after death. However, you must take advantage of it while your loved one is still alive.
During life, your loved one can authorize you to make a variety of decisions for them if they are incapacitated and can authorize you to access financial accounts and personal property. The estate planning instruments available during life that provide access to your loved one's estate and “estate issues” include:
- Living will (advance directive)
- Health care power of attorney
- Durable financial power of attorney
- Pay bills
- Make deposits
- Sign checks
- Sell property
- Close accounts
A living will is an instrument in which your loved one can express their wishes for life-sustaining treatment. Their living will authorizes their physician to take specific medical procedures if they are faced with irreversible incapacity.
With this instrument, your loved one can authorize you to make medical decisions on their behalf if they become incapacitated.
This instrument authorizes you to access your loved one's financial assets when they are incapacitated during life. It can authorize you to:
Unfortunately, your authority under a power of attorney ceases when your loved one dies. However, there is one instrument in which a loved one can authorize you to control their assets after death. It does not provide access to probate court, but with this instrument, probate can be avoided entirely. This instrument must be executed during life:
- Revocable living trust
A revocable living trust allows your loved one to transfer authority over their assets and property to you. It can provide access during their life and after they die.
Trusts are considered “non-probate” transfers of property. Therefore, in addition to many other benefits, when your loved one dies, as the “trustee” of your loved one's trust, you retain control over your loved one's property and do not need the court's permission to distribute the property according to the terms of the trust. A trustee is to the trust what an executor is to a will, except as a trustee, you have access to your loved one's estate without the need for the court's authority — even during a pandemic.
Notwithstanding all the devastation and inconveniences of the COVID-19 pandemic, the restrictions imposed upon communities in an effort to protect against it have also had an impact — particularly on access to estate planning and probate resources. To avoid the limitations resulting from restrictions on court access during another major event like the current pandemic, consider having your loved one execute a revocable living trust during their life.