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How to make an online will during a pandemic

Companies that prepare wills have seen uptick in business
Posted at 5:08 AM, Jun 30, 2020

In uncertain times, it’s natural for people to start thinking about whether they have their affairs in order and whether their loved ones and assets would be protected if something happens to them. Now those concerns are prompting many who don’t have a will to stop stalling and get their estate plans in order—even if it’s impossible to get to a lawyer just now.

Indeed, companies that help consumers execute online wills, including big players such as Legal Zoom and Quicken Will Maker as well as smaller startups like Trust & Will and Cake, have seen a surge in customers. One newer online trust and estate company, Gentreo, says business is up 223 percent over the past two months.

But while online wills may be a good solution if you feel pressed to get your affairs in order right now, there are caveats to consider, especially if you need a sophisticated estate plan.

Plus, because of stay-at-home orders in many cities and states across the U.S., the process of completing an online will may be complicated. For example, it can be hard or impossible to access a notary or get witnesses to sign your will, if they are needed.

On the other hand, it can still be better to get started now making important, if difficult, decisions about guardianship for your children and how you’d like your assets divided, than to wait until it is too late.

If you die without a will, state laws will determine who gets what and where your kids will go. Half of U.S. adults don’t have an estate plan, and for the half who do, those documents are often out of date, says Cody Barbo, founder and CEO of Trust & Will.

Consumer Reports spoke with several experts in estate law and executives from estate planning companies to find out how to navigate the process of writing an online will at such a trying and tricky time. We also offer important information on how to prepare an advance health directive, which spells out your wishes for medical care at the end of your life, and a healthcare proxy, which allows you to appoint someone to make medical decisions on your behalf.

The Main Pros and Cons of Online Wills

The most obvious advantage of creating a will online is that it can be fast and won’t cost much. You don’t have to wait for a meeting with a lawyer, and there are no legal fees, says David Horton, professor of law at the University of California, Davis, who specializes in wills and estate planning. Most online services offer a simple will for about $100, Horton says, which he estimates is anywhere from one-fifth to one-fifteenth of the cost of an attorney-drafted will. Many can be completed within an hour.

Still, if you complete the process online, experts caution to be wary of legal issues that could arise. Something as simple as not signing the documents correctly could lead to future problems, says Jennifer L. VanderVeen, an Indiana-based elder law attorney. She also says it’s possible that without proper legal guidance you might unwittingly fail to dispose of your entire estate.

“One of the benefits of having an attorney prepare your estate planning documents is that we can guide you through your situation and make suggestions as to how to put together a plan that will work for your family,” VanderVeen says. She points out that many law offices are open and working remotely during the current pandemic, holding video conferences to help clients get documents in place.

Some of the potential issues with online wills were highlighted in a forthcoming paper by Horton, the UC Davis law professor. He examined hundreds of estates filed in two California counties over several years and found that mistakes can happen with online wills because their boilerplate nature can make them ambiguous, which can lead to litigation.

“At least judging by reported cases, people who try to make their own wills sometimes make catastrophic mistakes,” he says.

Given the current crisis and the imperative that some kind of will is better than none at all, a smart strategy might be to create an online will now and reexamine your plan with the help of a lawyer once the pandemic is over.

If You Go the DIY Route

Whichever online service you choose, you’ll be provided templates or questionnaires to help you create your plan. These typically include questions about your debts, whether you have dependents, who would be the guardian of your children and pets, and so on. Trust & Will, for example, says you just need to answer a “few simple questions” and, in about 10 minutes, will have completed estate documents to review and sign.

When your will is complete, you will need witnesses and, depending on your state, maybe a notary, both of which can be complicated to arrange for when so much of day-to-day life is, for now, being handled remotely. But even during the coronavirus pandemic, it’s possible.Barbo, of Trust & Will, says some clients are signing their documents and waiting for lockdown restrictions to be lifted. Others are heading to banks and UPS stores that remain open and provide notary services. He’s even heard of people arranging for mobile notaries, and setting up tables in their driveway and asking neighbors to be witnesses, then placing the documents in a bag to leave in the garage for a few days before touching them again.

“It’s better to have a signed set of documents than an unsigned set,” Barbo says.

Some states have enacted emergency provisions that in certain situations allow for a remote notary or witness. The American College of Trust and Estate Counsel maintains a page about laws and accommodations in every state.

After you’ve completed your will, it’s important to tell people who are named in it where the document is located. You can keep your will in a personal home safe or locking file cabinet, provided someone else will be able to gain access. Another possibility is to store the information electronically, says attorney VanderVeen, who suggests the American Bar Association’s Mind Your Loved Ones app.

Advance Directives and Healthcare Proxies

An advance directive is a document that spells out the medical care you wish to receive at the end of your life, including, for example, how aggressively you want to be treated if you have a terminal condition and develop, say, pneumonia. A healthcare proxy is someone you appoint to make medical decisions on your behalf in the case of a medical emergency when you can’t speak for yourself.

You can also fill out both of these documents online. Some online estate planning companies offer these services, as do several nonprofits.

For help thinking through the questions you need to ask yourself about your end-of-life care, and to choose the person you want to serve as your healthcare proxy, you can go to the American Bar Association’s Tool Kit for Health Care Advance Planning or the guide from The Conversation Project (PDF), a public engagement initiative of the Boston-based Institute for Healthcare Improvement.

For the forms themselves, go to the AARP, the National Hospice and Palliative Care Organization, and Prepare for Your Care, an initiative that focuses on aiding individuals who seek to plan end-of-life options.

As with wills, legal requirements for advance directives and proxies vary by state, and completing them is a trickier task while remote. Requirements for a notary and witnesses vary across all 50 states, says Susan Enguídanos, associate professor at the University of Southern California Leonard Davis School of Gerontology in Los Angeles.

If you have a scanner, you can email the forms to witnesses to hand sign, scan, and email back, says Rebecca Sudore, M.D., professor of medicine at the University of California, San Francisco, School of Medicine and developer of the Prepare for Your Care initiative. If that’s not an option, she says, you can sign the forms and take pictures with a smartphone, then send them to witnesses, who can do the same.

Once you’ve completed the process, experts say it’s good to discuss with friends and family, as well as your doctor, what your wishes are and who you’ve chosen as a proxy.

“We like to say [that these advance plans] are only as good as the conversations that people have about their wishes with the individuals who may be involved in medical decision-making,” Sudore says.

She also recommends updating the directive over time. “This should not be a ‘one and done’ situation but should be an ongoing process as people’s context may change over time,” Sudore says.

At a minimum, it’s helpful to get the process started.

“The legal documentation has always been an important step of advance care planning—but not the only step,” says Kate DeBartolo, senior director of The Conversation Project. “I’d argue that having conversations is even more important now than ever.”