Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, April 9, 2020

Article on COVID-19 and Formal Wills

WillDavid 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.

April 9, 2020 in Articles, Current Affairs, Current Events, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic

DigitalGovernor 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

D.C. Proposes Electronic Will Statute

Covid2In 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.

April 7, 2020 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Sunday, April 5, 2020

Funerals are the Latest Part of American Life to Move Online

OnlinefuneralAmidst 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.

April 5, 2020 in Current Affairs, Current Events, Death Event Planning, Estate Planning - Generally, Technology | Permalink | Comments (0)

Tuesday, March 31, 2020

Article on Avoiding Grave Consequences: Electronic Wills as a Solution for Texas

TexastechMelissa 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.

March 31, 2020 in Articles, Current Affairs, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Thursday, March 26, 2020

Americans are Rushing to Make Online Wills with 143% Uptake During Coronavirus Outbreak - But Lawyers Warn Some Might be Invalid

WillAs 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.

March 26, 2020 in Current Affairs, Current Events, Disability Planning - Property Management, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Monday, March 23, 2020

Five Tips to Decrease Social Isolation for Older People During COVID-19

RotaryphoneSocial distancing has become the new normal with the rise of COVID-19, but many older Americans may not be comfortable with digital devices. Approximately one-third of those 65 and older may have never used the internet and may not have internet access at home, and half of those that do have the internet need help to navigate it or set up a new device. As the virus spreads, so can loneliness, especially for the elderly who cannot or do not know how to take advantage of socializing through today's digital age.

Here are five tips to help older adults stay connected through technology:

  •  Most older adults have a smart phone, personal computer, or tablet, they may just not have the hardware - such as a microphone or speakers, or the software - such as an essential update, to get connected to others.
  • Games or programs such as bridge, chess, or mah-jong may help older individuals to ward off isolation, but need help downloading them. They may also need assistance in creating profiles on social media sites.
  • There are vast amounts of applications with the intention of keeping people connected, and more seemingly being created every day, but elders may just need a guiding hand. This is also a great way for kids to bond with grandparents, and to build up children’s confidence.
  • Elder financial abuse is rampant, so staying vigilant and explaining to older individuals the ins and outs of these scams are highly important as they spend more time on their devices.
  • For those that do not have the internet, staying connected through a land-line but seem antiquated, but it is a viable option. Family members can arrange a schedule of who will call, and maybe, during those calls, even talk about connecting through the internet.

See Naomi Cahn, Five Tips to Decrease Social Isolation for Older People During COVID-19, Forbes, March 18, 2020.

March 23, 2020 in Current Affairs, Current Events, Elder Law, Estate Planning - Generally, Technology | Permalink | Comments (0)

Sunday, March 15, 2020

Article on Postmortem Defamation in a Society Without Truth for the Living

DefamationReid K Weisbord recently published an Article entitled, Postmortem Defamation in a Society Without Truth for the Living, Wills, Trusts, & Estates Law eJournal (2019).

Defamation law limits the private action for reputational injury to plaintiffs who are alive at the time of disparagement. In a novel reform proposal, Professor Don Herzog argues that we should extend defamation liability to disparaging statements about dead people. This Essay evaluates Herzog’s theory of postmortem reputational harm by focusing mainly on two counterarguments not addressed in his proposal: The first is that, since the election of President Trump, the modern political discourse has become so detached from the truth and callous about death that it is difficult to envision a moral obligation to protect postmortem reputational interests. The second distinguishes the consequentialist doctrine of testamentary intent from Herzog’s moral theory of postmortem defamation. This Review Essay concludes that, while society should indeed strive to recognize a moral obligation to protect decedents against reputational harm, we cannot do so without first restoring our commitments to truth-telling and respecting the solemnity of death.

March 15, 2020 in Articles, Current Events, Death Event Planning, Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0)

Wednesday, March 11, 2020

Article on Technology Adrift: In Search of a Role for Electronic Wills

Adam J. Hirsch recently published an Article entitled, Technology Adrift: In Search of a Role for Electronic Wills, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.

This Article addresses the law and public policy of electronic wills. The Article analyzes state statutes that either apply explicitly, or might apply implicitly, to wills of this type and concludes that judicial approval of electronic wills is already within the realm of possibility even in the many states that do not expressly allow them. The Article also examines the case law to date on this issue, both in the United States and in foreign jurisdictions, including several cases that have not previously been noted by American commentators. The Article then addresses the merits and demerits of electronic wills and presents the results of the first large-scale empirical study of popular attitudes toward these wills. In light of this analysis, the Article proposes a new approach: to bar electronic wills in general, but to permit them for estate plans made under emergency conditions.

March 11, 2020 in Articles, Current Affairs, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Friday, March 6, 2020

Article on A Different Approach to E-Wills Proposed

EwillProf. Adam J. Hirsch has recently posted his article entitled Technology Adrift: In Search of a Role for Electronic Wills, 61 B.C. L. Rev. (forthcoming 2020) on SSRN. Here is the abstract of his article:

This Article addresses the law and public policy of electronic wills. The Article analyzes state statutes that either apply explicitly, or might apply implicitly, to wills of this type and concludes that judicial approval of electronic wills is already within the realm of possibility even in the many states that do not expressly allow them. The Article also examines the case law to date on this issue, both in the United States and in foreign jurisdictions, including several cases that have not previously been noted by American commentators. The Article then addresses the merits and demerits of electronic wills and presents the results of the first large-scale empirical study of popular attitudes toward these wills. In light of this analysis, the Article proposes a new approach: to bar electronic wills in general, but to permit them for estate plans made under emergency conditions.

March 6, 2020 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)