What Should I Do About My Estate Plan During the Shelter in Place Order and Coronavirus (COVID-19) Crisis?

The Impact of Sheltering in Place on Creating or Updating Your Estate Plan

Here are some questions you might be asking right now: Should I Work on My Will and Trust? Can I Work on My Estate Plan? Is This A Good Time to Update My Estate Plan? Here Are Some Questions You Might Be Asking Right Now: Is This the Right Time to Make A Will and Trust? Should I Have A Health Care Directive? How Do I Create These Documents When I’ve Been Ordered to Stay Home?

If you’ve read my previous blogs then you know as an estate planning attorney, I always think it’s a good idea to have a will, trust, health care directive and financial power of attorney. With the COVID-19 virus making headlines, and people being told to shelter in place to avoid spreading it to vulnerable members of our population, now seems like a particularly good time to think about what would happen if you had to be hospitalized, or worse, if you passed away and left a mess behind for your loved ones.

So there’s certainly incentive. But what about opportunity? What can you do when you’re supposed to stay home?

First, you can make decisions about what you want to happen if you pass away, or if you need someone to talk to your doctors or pay your bills. Working from home (or not working, as the case may be) also gives you an opportunity to talk to your loved ones and get their input on the planning process – as long as everyone can discuss it without getting too emotional about it.

Second, you can get the ball rolling on putting these documents together. Most of the attorneys I’ve spoken to lately are still working (myself included), and can meet with clients remotely. If you’re not inclined to go that route, you can also get statutory forms online or go through an online legal service. Bear in mind that I don’t generally recommend DIY estate plans for multiple reasons, but they are (usually) better than nothing.

The last step is the one most impacted by the shelter in place mandate: the signing. California law requires that witnesses to a signing be physically present; the same is true of notaries called on to notarize legal documents. As of the time I’m writing this article, California has not changed or relaxed these rules to accommodate those who are sheltering in place. However, there are some options that people can utilize if they can’t afford to wait until the shelter in place mandate is lifted.

  1. Wear gloves while handling the documents (and possibly masks, if you plan to be in close proximity to someone else).
  2. Everyone brings their own pen.
  3. Maintain a six foot distance from the other parties. There’s no rule about how close witnesses or the notary have to be: the witnesses just need to see you sign the document, and the notary just needs to verify your identity in person. Depending on the size of the space where the signing happens, some choreography might be required, but it can be done.
  4. Use hand sanitizer after everything is signed.
  5. Have the completed documents mailed to you; if the virus is on the documents, it will have disintegrated by the time they arrive (though if you’re still worried, you can let the packet sit on a table for a day or two).

There are also a few things you can do if you want to have something in place until it’s safe to meet in person again. A handwritten will is valid in California without witnesses, but it needs to be one hundred percent handwritten, with a date and a signature. (If you go this route, please make your handwriting is legible). You can also make your medical wishes known to your loved ones in the event you have to go to the hospital; it doesn’t have the power of a legal document, but it would help them if the doctors asked them to make a decision on your behalf.

If you would like to know more about what you can do while sheltering in place, or hear all the reasons I don’t recommend DIY estate plans, you can email me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.


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