Thursday, April 9, 2020
David Horton and Reid K. Weisbord recently published an Article entitled, COVID-19 and Formal Wills, Wills, Trusts, & Estates Law eJournal (2020). Provided below is an abstract of the Article.
Most Americans do not have a will, but as COVID-19 sweeps through the country, some Americans urgently need an estate plan. Unfortunately, probate law makes it difficult to create a will during this crisis. Indeed, twenty-five states and the District of Columbia recognize only one type of will: a “formal” will executed in compliance with the Wills Act. Under this ancient statute, wills must be written on paper, signed by the testator, and also witnessed by two people who were present at the same time. Thus, the Wills Act’s insistence that parties physically occupy the same space poses an unforeseen barrier to testation during a time of widespread quarantine.
Yet the pandemic has also arrived during a period in which wills law is in flux. In the last two decades, a handful of jurisdictions have begun excusing harmless errors during the will-execution process. And, in an even sharper departure from the Wills Act’s stuffy norms, four states have recently authorized electronic wills.
This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it makes will-making inaccessible. As a result, we urge lawmakers in states that cling to the statute to liberalize its requirements. Our argument proceeds in three Parts. Part I details the social value of will-making. Part II describes the Wills Act and explains why it creates formidable obstacles for testators who are caught in the jaws of a pandemic. Part III explores three ways in which policymakers can solve this problem: by permitting holographic wills, adopting the harmless error doctrine, and passing electronic will legislation.
Governor Andrew Cuomo has signed various executive orders to address the issues faced by the state of New York and its residents during these unprecedented times as the country deals with the COVID-19 pandemic. On April 7, 2020, the Governor issued Executive Order 202.14 which modifies the laws concerning numerous documents pertaining to a person's estate plan.
The act of witnessing for the execution of certain instruments that is required under state laws is authorized to be performed utilizing audio-video technology. Those instruments include:
- Last will and testament
- Lifetime trust
- Statutory gifts rider to a statutory short form power of attorney
- Real property instruments
- Health care proxies
- Instrument to direct the disposition of a person’s remains upon their death
See Cheryl L. Erato, The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic, nyestatelitigationblog.com, March 8, 2020.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Ira Bloom (Justice David Josiah Brewer Distinguished Professor of Law, Albany Law School) for bringing this article to my attention.
April 9, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Trusts, Wills | Permalink | Comments (0)
Tuesday, April 7, 2020
In response to the COVID-19 pandemic and its astounding affects on the economy and the daily lives of American citizens, the Washington D.C. legislature proposed the COVID-19 Response Supplemental Emergency Amendment Act of 2020 yesterday. Today, an amendment was added to allow its citizens to create wills electronically when "the Mayor has declared a public health emergency."
To read the amendment, see here.
Sunday, April 5, 2020
Amidst the current pandemic, the Center for Control and Prevention has urged funeral directors around the country to move funeral services online. So for the immediate future, even for those that did not die of the novel COVID-19 virus, people cannot hold an in-person memorial for their loved ones.
"Being a millennial on the internet, I've watched my fair share of livestreamed events, but it was sad for all the wrong reasons," 27-year-old Garrett Galindo said after having to watch his 82-year-old grandmother's funeral online. Isabel Cabrera Galindo was a social woman that died of natural causes. "It was sad that my grandmother, a woman known for her love of large gatherings, parties and get-togethers, would have her final service be in front of only 10 of her loved ones. It was sad that even with today's technology it was so difficult to hear her eulogy, and it was sad knowing we couldn't share those final moments together as a family." Many of her older friends could not even attend digitally due to a lack of knowledge of the technology.
With more than 7,000 deaths in the United States each day, many do not want to delay celebrating the lives of loved ones. But the new normal of today of social distancing makes those traditional celebrations impossible. People have criticized livestreamed religious services in the past for being an unsatisfying replica of the in-person experience and some feel the same way about bringing funeral online.
See Samantha Murphy Kelly, Funerals are the Latest Part of American Life to Move Online, CNN, March 23, 2020.
Friday, April 3, 2020
Lionel Smith recently published an Article entitled, Sources of Private Rights, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.
Much has been written in both the common law and the civil law about the ‘sources’ of rights or of obligations. Jurists have attempted to classify and organize these sources as a way of shedding analytical light on the different kinds of rights that exist in private law. Building on recent scholarship in Quebec civil law, the author argues that the idea of the source of a private right is deeply ambiguous, and that the failure to see this has bedevilled attempts to classify the sources of rights. Just as every effect has multiple causes, every right has multiple sources. The author also argues that a similar ambiguity inhabits the common law’s idea of a ‘cause of action’. Distinguishing between the different senses of the ideas of ‘source’ and ‘cause of action’ helps to clarify a number of debates in private law theory.
Thursday, April 2, 2020
Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act last week to provide relief from many of the hardships created by the coronavirus and President Trump signed the bill into law Friday night. One of the many benefits of the Act was that it, for many borrowers, suspends their student loan payments—interest free—through September 30, 2020.
There is some confusion, however, because it does take time for legislation to be implemented. The CARES Act provides automatic suspension of payments, with 0% interest, and counts towards loan forgiveness, but the website that oversees the majority of government student loans - MyFedLoan - is displaying a message stating an optional suspension of payments that will not count towards forgiveness programs. The website's call centers have decreased staff because of the virus and limited ability to answer borrowers' questions.
Student loan borrowers should be patient, as loan servicers are working to implement the bill and it will be applied retroactively. The Department of Education echoed this message on a call yesterday where it told listeners it is directing loan servicers to make this retroactive to March 13th. So as long as the borrower would have otherwise qualified for a forgiveness program, these months of non-payment will count toward their required number of payments for forgiveness.
See Wesley Whistle, The CARES Act Helps Most Student Borrowers Seeking Loan Forgiveness, Forbes, April 1, 2020.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Tuesday, March 31, 2020
Melissa Clark recently published an Article entitled, Avoiding Grave Consequences: Electronic Wills as a Solution in Texas, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.
There is a vast gap in Texas between testate and intestate individuals. Admitting electronic wills to probate may reduce that gap. This article analyzes the current electronic will statutes in effect and the newly created Uniform Electronic Will Act to propose a statute for Texas designed to further testator disposition of property, ensure compliance with will formalities, limit fraud, and prepare Texas for technological advancements through electronic wills. Without a statute, Texas will face admitting electronic wills executed in other states, through the savings statute in the Estates Code, without control or regulations in place.
Monday, March 30, 2020
Congress Suspends Required Minimum Distributions for 401(k)s and IRAs for 2020, Opening Window to Tax Savings
The bipartisan COVID-19 stimulus bill recently signed by President Trump includes welcome tax relief for retirees: The required minimum distribution (RMD) rules for Individual Retirement Accounts and 401(k)s are waived for 2020. This is the same as what occurred in 2009 during the Great Recession. For retirees, this means that instead of taking money out of their IRA this year, their investments can continue to grow.
Of course, for retirees that depend on their RMD to pay for expenses, the waiver is moot. For others, there may be benefits to still take some money out. Ed Slott, a CPA and IRA expert in Rockville Centre, New York, says “There are opportunities here. You might want to look at your tax bracket and get money out at low rates. If anything is obvious, it’s that tax rates are going to go higher.”
The rules for who was required to take 2020 RMDs were already altered because of the SECURE ACT, passed in late December, which changed the age triggering RMDs from 70 ½ to 72, effective January 1, 2020. Children, grandchildren and others who have inherited IRAs (pretax IRAs and Roth IRAs) must take annual withdrawals regardless of their own personal age. If you have already received a distribution from your own IRA or one inherited from a spouse for 2020, you can roll it back into your IRA within 60 days of receipt.
See Ashlea Ebeling, Congress Suspends Required Minimum Distributions for 401(k)s and IRAs for 2020, Opening Window to Tax Savings, Forbes, March 27, 2020.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, March 27, 2020
History has shown us that many cases have been successfully brought concerning transmission of viruses or infectious disease, including during a pandemic. These past lawsuits pertaining to Ebola, H1N1 (swine flu), and HIV/AIDS, and can serve as an indication of whether you can sue a person or entity if you contract the novel coronavirus - COVID-19.
Several courts have ruled that a person has a claim against someone who passes on the HIV/Aids virus. The California Supreme Court in John B. v. Superior Court ruled that suits regarding the negligent transmission of sexual diseases, such as the HIV/AIDS virus, can proceed based on constructive knowledge. Indeed, because of the nature of the virus, some states have criminalized the transmission of HIV/AIDS.
The Supreme Court of Texas, in a February 2020 opinion, Coming Attractions Bridal and Formal, Inc. v. Texas Health Resources, addressed exposure to Ebola in a claim brought under the Texas Medical Liability Act. A nurse of a Dallas hospital helped care for a patient infected with Ebola, then went to Ohio to shop at a bridal shop. Once she returned to Dallas, she became ill and later diagnosed with Ebola herself. The bridal shop claimed the hospital where the nurse worked was negligent for failure to prevent transmission of the Ebola virus to the nurse and alleging that the hospital’s negligence caused the shop to close due to health concerns and adverse publicity because of the virus. The case was dismissed due to failure to file an expert report, not due to failure to state a claim. Another Ebola case in Texas was remanded for further proceedings.
In Ebaseh Onofa v. McAllen Hospitals, a 2015 Texas Court of Appeals case, husband alleged that his wife returned from her shift at the hospital not feeling well. The hospital had confirmed cases of H1N1 virus (swine flu) in the hospital. She admitted to the emergency room a few days later and died just two days after that. The husband sued for wrongful death because the wife was not offered an N95 mask and the court granted the hospital summary judgement. The appellate court affirmed, concluding that the husband "produced nothing more than speculation on the element of causation" because there were no positive H1N1 patients in the wife's unit. Therefore, although it was possible that the husband could sue for his wife’s contraction of the virus, he had to present some evidence of causation to survive summary judgment.
See Can You Sue Someone If You Get Coronavirus?, Probate Stars, March 26, 2020.
Thursday, March 26, 2020
Americans are Rushing to Make Online Wills with 143% Uptake During Coronavirus Outbreak - But Lawyers Warn Some Might be Invalid
As of Wednesday, March 26, 2020, there have been 823 deaths linked to the novel coronavirus in the United States and over 60,000 confirmed cases. Spreading faster than the virus itself may be people's realization of their mortality, as many Americans are rushing to their computers to make digital wills.
Online will company Gentreo told CNBC they have seen a 143% week on week increase in business; Trust & Will has seen a 50% rise. Around 40% of Americans are thought to currently have wills place. Attorney Alain Roman, who assists with estate planning, said "Seeing in the news that so many people are passing away worldwide and here in the U.S., people are getting a little scared. It’s getting them thinking about having a plan in place in case something happens to them."
But legal experts have a warning for those signing wills online: be wary of their legality. Leslie Tayne, founder of Tayne Law Group, said the digital document will only be valid if it "meets all of the legal requirements of your state." Tayne added that "since the vast majority of DIY wills are created and executed without any oversight from an attorney, a larger number of wills (may not be) executed in compliance with the proper will formalities, and that could end up making the will invalid."
See Lauren Fruen, Americans are Rushing to Make Online Wills with 143% Uptake During Coronavirus Outbreak - But Lawyers Warn Some Might be Invalid, Daily Mail, March 25, 2020.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.