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Florida Bar Issues Estate Planning Guidance for COVID-19 Emergency

Coronavirus3

During the ongoing COVID-19 pandemic, all Florida residents are advised to practice “social distancing.” This presents unique challenges for estate planning. Many critical documents, such as a last will and testament, need to be signed in the presence of other witnesses. Other documents must be notarized. But if you are unable to leave your home and meet with other people at this time, what can you do? Is it possible to sign an estate planning document that does not fully comply with Florida law given the current emergency? Or are there other steps you can take to comply with the law while still practicing social distancing?

The Real Property, Probate and Trust Law Section of the Florida Bar recently issued a statement on these issues. The Bar’s statement is not legal advice. You should always consult with your own estate planning attorney before taking any actions. The Bar simply provided its own analysis of the legal situation as of April 3, 2020.

The Bar noted that while many states can accept wills that are in “substantial compliance” with local probate laws, even if they do not strictly comply with witnessing requirements, Florida judges have never recognized such an exception. To the contrary, Florida courts have always required “strict” compliance with the law, which requires any will to be signed in the physical presence of two witnesses.

Nor could an executive authority–i.e., the governor–simply waive compliance as part of any emergency order to deal with the COVID-19 emergency. The Bar said its leadership had “discussed asking Governor DeSantis to issue an executive order” to do just that, but concluded this would raise constitutional issues. Instead, the “safest solution is for the legislature to act,” possibly in a special session.

Some Practical Advice for Estate Planning During a Time of Social Distancing

All that said, there are certain steps that Florida residents can still take if they need to make or revise crucial estate planning documents during this time of social distancing. Here are some of the Bar’s recommendations:

  • You do not need to notarize a will. While wills can be notarized to make them “self-proving” later in probate court, this is not a requirement. You only need two witnesses to make your will legal, and they can be family members or other people already living in your household.
  • If you have a will that either contains real property or disposes of property upon your death, it also must be witnessed by two persons in your physical presence. Again, these witnesses can be members of your family or household; they do not need to be “disinterested” persons.
  • Any deed or document that transfers real property must be notarized. However, Florida now permits remote notarization of documents other than wills or testamentary trusts.
  • Advance Directives for health care must be witnessed by two people, and this can be done remotely under Florida law. But any person you designate as a surrogate to make health care decisions for you cannot also serve as witness, and you must have at least one witness who is not your spouse or a blood relative. Similarly, a living will requires two witnesses, and one cannot be a spouse or blood relative.

Consult with a Florida Estate Planning Lawyer If You Have Any Questions

Estate planning is now on the minds of many Florida residents to an extent that it was not prior to the COVID-19 pandemic. If you are thinking now is the time to make a will or sign a health care directive, it is imperative you contact an experienced Fort Myers estate planning attorney as soon as possible. Call the Kuhn Law Firm, P.A., at 239-333-4529 today to speak with a member of our estate planning team.

Source:

rpptl.org/uploads/Statement%20re%20Testamentary%20Docs%20During%20COVID-19%20Crisis.pdf

https://www.kuhnlegal.com/what-happens-to-my-savings-bonds-after-i-die/

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