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The Challenges of Making Your Will During COVID-19

A person drafting their will in case of death

More Americans are making their wills in 2020 and 2021, thanks to our global pandemic. CNBC mentions a recent LegalZoom survey: Around 32% of people aged 18 to 34 drew up a will because of COVID-19. But physical distancing brings its own challenges. With stringent legal requirements for wills, some states are reexamining parts of the will-making process.

Basic Requirements for a Will

American laws governing wills come from the United Kingdom’s Wills Act of 1837, which in turn comes from the 1677 English Statute of Frauds. The Stanford Law Review explains that every state has its own version of the Wills Act along with unique statutory requirements. Nolo adds that nearly every state requires three things for a will to be legally valid:

  • The will must exist in written form.
  • The person making the will must sign and date it.
  • Witnesses must also sign the will.

People usually either type or handwrite their wills, but it’s not a good idea to mix the two within the same document. With a typed will, it may be hard to tell if any handwritten bits were added before or after being signed and witnessed.

Holographic wills – handwritten and signed documents that aren’t notarized or witnessed – are also a thing. Some states don’t recognize them, but Investopedia lays out some typical requirements in states that do. There must be proof that the person actually wrote the will and was mentally sound when it was written. It should also state how the person wants property distributed after death.

The Trouble With Signatures

Before digital technologies, the only way to sign a document was to put pen to paper yourself. Nolo mentions that a signature can still be valid if you direct someone to sign on your behalf in front of witnesses. But what about electronic signatures? Most states have a Uniform Electronic Transactions Act permitting e-signatures on most contracts. But there’s one problem – the UETA specifically excludes wills. Even with electronic services like Rocket Lawyer, you must still physically sign your document.

The physical signature requirement does make it harder to create wills while socially distancing. Preventing fraud and exploitation are the most common arguments against electronically signed wills. Those favoring e-signature believe that it can make drafting wills easier for most people. With digital technologies growing, states will wrangle with this issue for some time.

Virtually Witnessed Documents

Physical distancing is essential to slowing down COVID-19’s spread. But with more people drawing up their wills, it’s thrown a monkey wrench into the process. Most jurisdictions require wills to be signed physically in front of witnesses. That’s hard to do during a pandemic, especially with shelter-at-home and distancing measures. Some states also want witnesses to be “disinterested parties.” According to financial expert Kerry Hannon, a disinterested party is someone who won’t inherit anything. That pretty much rules out your family, including your spouse.

Some states have begun to allow remote witnessing for wills. The rules can vary from state to state. For example, Alabama asks notaries to confirm each witness’s identity and presence. Alaska permits remote witnessing with no added stipulations. The American College of Trust and Estate Counsel has a list of states allowing remote notarization and witnessing. Holographic wills may be an option in states that don’t permit remote witnessing.

Doing What’s Best for Your Family

The COVID-19 pandemic has put a strain on everyone. Nearly everything about our lives has changed – weddings, funerals, school, work, and even making wills. The challenges posed by this pandemic require novel solutions in response. Solid information, good resources, and knowing your household’s financing needs are key in creating a will while observing physical distancing protocols.

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