Technological solutions such as e-signatures and Zoom meetings will likely remain even after social distancing restrictions are lifted and the Pandemic becomes a thing of the past.
Interactions with clients is the cornerstone of an estate planning attorney’s relationship with clients, but social distancing has limited contact with clients and, as a result, has proven that trust can be built in other ways. Frequent phone calls and emails, video calls, and, most importantly, strong, and thoughtful work providing the results our clients need, are now the basis of strong relationships with clients. Attorneys are embracing technology more and more to interact with clients and will most likely continue even after pandemic restrictions are fully lifted.
Social distancing has also significantly affected clients’ ability to easily execute estate planning documents. Historically, estate planning documents are signed in person with witnesses and a notary to observe the execution. This in-person execution helps to protect against fraud and undue influence and serves to impress the significance of the signing. However, with social distancing and stay-at-home orders, in-person execution with witnesses and a notary became almost impossible. Different states have responded in varying ways, including temporarily relaxing the execution requirements of estate planning documents, temporarily permitting the remote witnessing and remote notarization of estate planning documents, and permanently permitting a combination of remote witnessing and remote notarization.
In addition to the physical separation of the signer and notary, remote notarization is also a disruption of the well-established execution of how documents are signed. In most instances, remote notarizations require that an electronic or e-signature replace the physical signature. In the United States, e-signatures have been widely used for some types of transactions for years. As with many other technological advances, the estate planning community has hesitated to adopt this new capability. Only in recent years have some states allowed signers to use e-signatures to execute planning documents. Now, due to their function in the remote situations, e-signatures are quickly becoming a necessary tool for those who wish to find solutions based on social distancing limitations.
Numerous third-party software providers have also established protocols for building e-signatures into documents. One of the most prolific providers of this service is DocuSign, which allows users to upload PDFs of documents onto its website or app and add e-signature at the appropriate locations. The modified PDF can then be sent to all signing parties for their respective executions. But it should be noted that this signature process by itself does not satisfy the other execution requirements necessary to complete a document. In other words, using an e-signature is a means to an end in the process but does not circumvent the other important aspects of document execution. Nevertheless, like remote notarization, it may be difficult to undo this change after the pandemic has passed.
Electronic wills (e-wills) are closely related to e-signatures. In the case of the former, they generally fall into one of three categories: “offline e-wills,” which are created through a computer or electronic device and stored locally on the same computer or device; “online e-wills,” which are created similarly but stored on the Internet through third-party cloud storage operators; and “custodian electronic wills,” which, unlike offline and online wills, are drafted by or with the assistance of third-party entities that also store documents on their online platform.
As states loosen rules to assist attorneys in helping clients create and store offline and online e-wills, third-party document generation providers are benefitting. The few remaining barriers that have prevented these software companies from directly competing with practicing attorneys will be temporarily or permanently eliminated, allowing these e-drafters the ability to offer a faster and cheaper interactive process that some consumers prefer while providing a final product that is fully functional and compliant with the law. Estate planning attorneys who thrive in a post-pandemic world will be the ones who can incorporate the benefits of offline and online e-wills directly into their practices.
Remote and virtual probate. In many jurisdictions, the probate of a will requires the personal representative to personally appear in probate court. In these probate jurisdictions, local officials serve as the gatekeeper for the probate process. Local officials have needed to quickly adapt to the realities of social distancing where in-person probate is impossible. Rather than indefinitely close, many local probate offices have established virtual or remote probate procedures, which enable the appointment of personal representatives either by simply mailing their appointment papers to the probate office or by appearing “in person” through video technology with the local officials. In the future it will be interesting to see if the in-person presence resumes if these remote and virtual procedures can safely accomplish the same goals.
For more than a decade, attorneys have used document-preparation software to create estate planning documents for their clients. The next evolution in document preparation software involves the use of artificial intelligence to facilitate drafting. Such technology could better serve the needs of clients, streamline a probate practice, and enhance attorney-client interactions. Introducing this advancement to the private sector is only a few years away.
Technology and artificial intelligence that will enhance the estate and trust administration process are also on the not-too-distant horizon. Developers are currently creating technology that could digitize the probate process, enable personal representatives to locate a decedent’s assets throughout the world, permit personal representatives to access estate information in real time, and instantaneously create fiduciary accountings based solely on the information provided by financial institutions.
In conclusion, the future of the estate planning is here, and it is up to us to continue its modernization for our clients, for ourselves, and for the next generation of estates practitioners.
Whether you’re ready to start pre-planning or facing a crisis and trying to figure out what to do next, Bob Michaels with Tacoma Elder Care is here to help. To get started today or to learn more about what we do, schedule an appointment today.
Bob Michaels is extremely passionate about providing the best possible legal experience for his clients, and focuses his practice on elder law, estate planning, business, and real estate matters. Bob specializes in helping folks build a long-term care plan based on their circumstance. If you are considering a long-term care plan, schedule your appointment today!
This article is an abridged and edited version of one that originally appeared on page 60 of Probate & Property, July/August 2020 (34:4).
For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.