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What You Should Know About Online And Virtual Wills in New York

As a result of the COVID-19 crisis, people throughout the United States and other countries are exceedingly concerned about their personal and financial welfare.  Among other matters, consideration has been focused on protecting one’s assets, as well as insuring that the assets are properly situated to be passed on to others in the event of a person’s demise.

As a New York estate attorney, I have witnessed this heightened sense of concern over the past decades in connection with the World Trade Center bombings, Hurricane Sandy and other emotionally charged events.  While the initial impulse is to rush to prepare a Last Will and Testament and Advance Directives such as a Power of Attorney, Living Will and Healthcare Proxy, it is important to take the time and proper forethought before rushing to assemble and sign what are significant legal documents.

I have just read a post on CNBC.com by Bryan Borzykowski dated March 25, 2020 entitled “Americans rush to make online wills in the face of the coronavirus epidemic” . The article notes that over the past couple of weeks, companies that produce online estate planning documents such as Last Wills have seen as much as a “143% week-over-week increase” in these services.  While the article notes that the use of such online services has grown over time and can be less expensive than retaining an attorney,  the article points out that problems may arise as to the validity and effectiveness of papers that are created without proper legal guidance.

Video and online execution, in most cases, are not provided for or accepted, particularly with respect to Wills.  At present, New York does not provide for a virtual execution of a Will.  Estates, Powers and Trusts Law section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides that a Will must be in writing and signed in the presence of at least two attesting witnesses.  In view of the social distancing and other personal interaction restrictions currently in place, Will execution statutes present difficult requirements to meet.  Any attempt to circumvent the statutory mandates can result in the invalidity of a Will due to improper execution.

As with any online document, the absence of an attorney’s guidance may present problems.  In New York, when the execution of a Will is supervised by an attorney, there is a presumption of validity afforded to the execution process.  In the event of a Will Contest, such a presumption and professional oversight may be crucial to successfully uphold the Will and have it admitted to probate notwithstanding a challenge.  Also, the attorney can be available to testify as to the decedent’s intentions and the lack of any undue influence or other impropriety that could result in invalidity.  Also, a person’s estate planning needs may be better served with a Living Trust.

As the CNBC article notes, drafting problems may result from a do-it-yourself project.  There may be other hidden issues that the online forms do not address.  For example, a person may designate someone in a Will to act as his Executor.  However, the New York estate laws in Surrogate’s Court Procedure Act section 707 entitled “Eligibility to receive letters” may deem the designee to be disqualified.  According to this statute, a non-resident alien and a person who is a felon may not qualify to act as an Executor.

I have assisted many clients with their estate plans and Wills.  There have been many cases in which I have helped clients deal with Will contests and other litigated issues.  While the preparation of online papers is here to stay, the best steps are to examine all of the documents carefully and be certain that all contingencies are covered.  Call me now for a free review of your estate or trust issue.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to Guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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