As the coronavirus pandemic sweeps through the country, more people may find themselves inurgent need of an estate plan.
But according to one recent survey, 68% of Americansdo not have a will.
We arelaw professorswho teach and research trusts and estates. Werecently studiedsome of the estate planning impacts of the coronavirus and concluded that, in many states, the law is not prepared to address the sudden spike in demand for self-made wills.
Dying without a will
The downsides of dying “intestate” – without a will – arewell documented. Intestacy laws generally distribute property at death tothe surviving spouse or descendants, a plan that is not necessarily suitable for unmarried couples and other nontraditional families.
To avoid intestacy, people may create a will by complying with the requirements of the “Wills Act,” law dating back to anEnglish statute from 1677. A person who creates a will, called a “testator,” must sign the will or acknowledge a previously made signature in front of two witnesses who are present at the same time. Then,the witnesses also must sign the will.
Many states discourage people from writing their own wills by insisting on strict compliance with the Wills Act. For example, courts have refused to enforce documents that the testator apparentlyforgot to sign, instruments signed byone witness instead of twoand documents signed by witnesses who only heard the testator acknowledge his signatureover the telephone.
Public health crises, like the current pandemic, pose additional obstacles. Stay-at-home orders and social distancing can make it impossible to find two witnesses, especially for people who are living alone.
Judges have historically requiredwitnesses to be physically present for the testator’s signature, so traditional law regards videoconferencing methods as nonstarters.
Wills in the time of coronavirus
Some American jurisdictions, however, have relaxed these formalities.
Abouthalf the states– including California, New Jersey, Pennsylvania, Texas and Virginia – allow testators to make holographic wills without witnesses. Instead, holographs must be entirely in the testator’s handwriting and signed by the testator. However, empirical research shows that handwritten wills aredisputed in court more frequentlythan formal wills drafted by an attorney.
Additionally, 11 states have adopted a reform known asharmless error. This rule allows a judge to enforce a writing that does not comply with the Wills Act if there is strong evidence that the testator intended it to be his or her will.
This safety valve reassures testators who lack access to professional advice that a minor misstep will not doom their estate planning efforts.Empirical evidencesuggests that the rule is not a major source of conflict or litigation.
However, because formal wills remain the only option in about half of the states, lawmakers have responded to the current pandemic by issuingemergency ordersto permit remote witnessing by video communication.
These orders implement ideas from the Uniform Electronic Wills Act, model legislation introduced in 2019 but not yet adopted by any state. One of COVID-19’s lasting legacies might be bringing the law of wills into the 21st century, as states gain experience with electronic wills and ultimately enact permanent laws to permit them after the pandemic.