How Do You Make a Will During the Coronavirus Lockdown?


Illustration for article titled How Do You Make a Will During the Coronavirus Lockdown?
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If the coronavirus outbreak has got you asking yourself whether it’s finally time to make a will, you’re not alone. (It’s that combination of “time on your hands” and “time to think seriously about what might happen to your loved ones in a worst-case scenario” thing.)

Unfortunately, the act of making a will isn’t enough. You also need to ensure your will is legally binding, especially if you use an online will service instead of working one-on-one with a lawyer. Each state has slightly different requirements in terms of “what makes a will legal,” and although some states allow e-signed wills, others require you to sign your will in front of two disinterested witnesses (that is, people who aren’t going to benefit or inherit from the will) and/or a notary public.

All of this becomes a little more difficult while you’re physically distancing or sheltering in place—but not impossible, if you’re willing to get a little creative.

I reached out to Chas Rampenthal, General Counsel at LegalZoom, to learn how people can make legally valid wills while maintaining good physical distancing habits. He suggested using an online service to set up your will, printing out a copy of your will, and asking friends or neighbors to serve as witnesses while simultaneously standing at least six feet away.

Rampenthal even provides a script: “In this era of social distancing I’d love for you to witness my will, and here’s how we’re going to do it. I’m going to put a little folding table and chair out in my yard, I want you to pop over to the fence and watch me sign it, I’m going to step back, you’ll see I have gloves on, and then you can come over and bring your own pen and sign these two places as a witness.”

If your state also requires a notary public to validate your will—or if you want to use a notary public because you’ve heard it makes the probate process easier for your heirs and witnesses—there are mobile notary services available. (That doesn’t mean “notary by phone,” btw. It means “notary who will travel to your location.”) If you find a notary willing to meet you somewhere, use the same physical distancing protocol: six feet apart, separate pens, disposable gloves.

What if you don’t have anyone whom you can ask to witness your will from a distance? What if you or a family member are experiencing coronavirus symptoms and don’t want to invite a neighbor to come within even six feet of you? Is it possible to create a will on your own, either through an online service or literally written down on a piece of paper, sign it without any witnesses, and have it hold up after your death?

Well, maybe.

“In the technical sense of the term, the will’s not a valid will, but it may still end up getting followed,” Rampenthal told me. “But that’s a huge risk, and unfortunately it requires lawyers and money and time and effort. I don’t want my wife, my kids, or my family to have to do all of that.”

Essentially, a probate court can use an invalid will as “evidence of intent,” but they won’t treat it as a legally binding document—and your heirs and the court might disagree on whether to distribute your assets the way you intended.

So do everything you can to make your will as valid as possible. Call a lawyer who’s working from home to ask about the legal requirements in your state, and what you can do about the notary issue if that’s going to be a problem. Ask two friends to meet you in a public park to get the signatures done. Create a will that counts, because otherwise you’ll be leaving your loved ones with a hassle instead of a gift.

And, while you’re at it, choose a healthcare proxy. Just in case.