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COVID-19 spurs uptick in estate planning

Senior Editor News in Photos

RPPTL logoFlorida probate attorneys say the COVID-19 pandemic is prompting a surge in interest in will preparation and estate planning.

“This pandemic has certainly caused people to confront their own mortality in a very real way,” said South Florida attorney Duane Pinnock, who is board certified in wills, trusts, and estates.

Pinnock said his Palm Beach practice was doing a brisk business before the disease outbreak, so it’s difficult to determine how many new clients are motivated by coronavirus fears.

“I am definitely getting calls from potential clients interested in getting their documents done, as well as calls from clients whose documents are in process, seeking to expedite things.”

Meanwhile, probate lawyers are scrambling to comply with social-distancing mandates and Florida’s strict, in-person witnessing requirements for executing “testamentary” documents, including wills, trusts, health-care surrogates, and powers of attorney.

For the past two weeks, the Bar’s Real Property, Probate and Trust Law Section has been “inundated” with inquiries, said Probate Division Director Sarah Butters of Tallahassee.

“I think the concern is, nobody wants to meet with their clients because of social-distancing requirements,” Butters said. “We were looking for ways to relax that requirement, but we’re stumbling.”

Recent Supreme Court administrative orders temporarily dispensed with some in-person notarization requirements, but they don’t apply to testamentary documents, Butters said.

Complicating matters is a 2019 law that on January 1 authorized the online notarization of transactional documents, such as deeds and closing documents.

The same law authorized the online notarization and witnessing of wills for non-vulnerable adults, but that portion of the law doesn’t take effect until July 1, Butters said.

“The product they came up with was the result of very robust debate,” Butters said of the legislation. “We wanted time to get the public educated and time for the dot-com companies to get it right.”

After reviewing existing law and the recent Supreme Court administrative orders, Butters recorded an 18-minute video explaining her analysis of the dilemma. The video can be found here and on the RPPTL’s COVID-19 information page.

Unlike other states, Florida’s probate law does not appear to give the governor or the judiciary the power to temporarily suspend witnessing requirements for testamentary documents, Butters said.

The Florida Legislature is expected to convene a special session this summer to deal with budget issues related to the pandemic. But there is no guarantee that lawmakers will have time to debate will execution requirements, Butters said.

“Even if we ask them to fix it, and make it retroactive, it’s hard to tell practitioners to make that assumption,” Butters said. “That would be malpractice.”

Butters said her firm has already overcome the problem by having clients and witnesses sign documents in her firm’s parking lot.

“The witnesses don’t have to be in the same room, they just have to be in the line of sight,” Butters said.

Lawmakers began crafting legislation authorizing online wills in 2017, but the first attempt was vetoed by former Gov. Rick Scott, who said it did not go far enough to protect frail seniors. A 2018 proposal failed to pass before lawmakers adjourned.

The 2019 version exempts vulnerable adults and requires retention of online signing ceremonies for evidentiary purposes, among other protections, Butters said.

But lawmakers never contemplated the need to protect healthy adults during a pandemic, Butters said.

“It will be interesting to see how this changes people’s mindset,” she said.

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