Many of us know that we need an estate plan, but we haven’t yet found the time or the money to get it done. COVID-19 brings a new urgency to completing this task. If you’ve been putting off making an estate plan, now is the time.
With a good estate plan you can:
The coronavirus brings home the reality that we could get very sick very quickly. And it brings up some uncomfortable concerns about what would happen if you got so sick that you could no longer speak for yourself. Living wills, medical powers of attorney, and durable financial powers of attorney allow you to address these concerns while you are still well.
A living will gives you some control of the health care you receive if illness makes you unable to convey your wishes. Of course, as long as you can speak for yourself – or make your wishes known in any way – your health care providers must follow your instructions. But if your case of COVID-19 becomes so severe that you must be put into a coma and on a ventilator to help you breathe, you will not be able to tell medical providers what you want.
With a living will, you can consider and document what you’d like in a dire situation like that. Do you want doctors to do everything they can do to prolong your life, even if it is clear that you never regain consciousness? Would you prefer not to continue living in a vegetative state? Or do you want someone else to decide?
Leaving a living will helps health care providers know what to do when, medically, there are no good options left. But perhaps more importantly, the instructions help your loved ones make tough decisions without having to guess what you would want. This can reduce stress and conflict during what would be an extremely difficult time for your family.
States use different terminology for this document. Some states call it a “living will.” Other states call it a “declaration.” And an increasing number of states combine a living will and a power of attorney for health care (see below), in one document called an “advance directive. “
You can use a power of attorney for health care to name a person to make health care decisions for you when you cannot speak for yourself. Making this decision ahead of time informs medical professionals about who to turn to when important decisions need to be made about your care. If you do not make a health care power of attorney and there is any uncertainty about who should be the point person for your care, your state law determines who gets to make such decisions--usually your closest relative, like your spouse, your child, or your parent.
Like living wills, powers of attorney for health care go by different names depending on the state. Some states call them “medical powers of attorney.” Other states use “health care proxy” or “designation of surrogate.” Many states include the term “durable,” which is the legal term for a document that stays valid, even if the person making it becomes incapacitated.
Further, many states combine health care powers of attorney and living wills into one form, usually called an “advance directive.”
If you end up in the hospital because of COVID-19, you may need someone to look after your finances while you’re away. In a durable power of attorney for finances, you can name a trusted person to take care of your financial concerns. You can empower your agent to:
If coronavirus brings the worst-case scenario and you die, do you know who will get your property?
Some property, like pay-on-death bank accounts and retirement accounts, will go to the beneficiary you named during your life. (This is a good time to review your beneficiary designations!) But any property that doesn’t have a designated beneficiary will be transferred according to the laws of your state unless you’ve made a different plan. State laws generally give your property to a close relative or divide the property between two or more similarly close relatives. The exact determination varies by state.
If you plan ahead, you can decide who gets your property. Several different estate planning tools can take care of this for you.
Wills are the most common way to name beneficiaries for your property. With a will, you can also name an executor to wrap up your estate and name guardians to care for minor children.
The upsides to wills are that they are fairly easy to create, they do not need to be complicated, and they are relatively affordable. The downside is that property passing by will must usually go through probate. Probate is the court process that winds up a person’s estate. Probate can be expensive, time-consuming, and often of little benefit to the survivors and beneficiaries.
Like a will, you can use a living trust to name beneficiaries for your property. But unlike a will, the property that passes through a living trust does not go through probate. So, for many years people have used living trusts to keep their estates out of the probate process. Another benefit of a living trust is that before you die, your successor trustee usually has the power to manage trust property if you become incapacitated.
The main downside to a living trust is that they are more complicated to make than wills, and therefore they are more expensive to create. Property must be “transferred” into the trust. For some property, this can be as simple as including it on a list of property attached to the trust document. But it’s more complicated for property with title documents—like real estate—because you must change the name of the owner of the property on the title: Instead of you owning the property, the property becomes owned by the trust (but still controlled by you).
In addition to the documents discussed above, there are several other things you can do to make things easier for your loved ones if you get sick or die.
The most helpful thing you can do is to organize your home and your records. If you are stuck in the hospital or if you die, your survivors may need to know how to:
If you are well enough now, gather and organize these details so that you can leave clear records, information about your life, and instructions about what to do if you get sick or die.
It’s understandable if this task sounds daunting. But you can start with the easy stuff. As a first step, try taking just a half-hour to write down a simple list of the things your caregivers or survivors would need to know if you get sick or die. You can fill in the details over time. At a time of great stress, this organized information will be a great relief to your loved ones.
Learn more about organizing your records and getting your affairs in order at Nolo.com.
You might also consider writing a final letter to your loved ones. There is no required recipe for such a letter. But think about what words you might want to leave. They may be thoughts about your life, appreciations of your family, words of hope for the future, explanations about things that might not be clear, and so on. It certainly wouldn’t hurt to jot down a few ideas and expand on them in the coming days.
Give some thought about what you would like to happen to your body after you die. Also, consider what kind of services you would like or not like. For example, do you want:
Also, do you know how your survivors will pay for your final arrangements? At most you could write down all of your wishes and prepay for everything. But all of that may not be necessary. At the least, talk to your loved ones about what you want. They will be grateful for any guidance you provide to help them make decisions in the difficult days after your death.
Under the social distancing limitations of COVID-19, it may be more complicated to hire an attorney to work on your estate plan, but it is still possible. First, get recommendations from friends, family, neighbors, or business associates. Then be prepared to make a lot of phone calls to find an attorney who 1) practices in your state, 2) has rates you can afford, and 3) has figured out how to either see clients safely in an office or effectively bring on new clients via email or video conferencing.
Ideally, you’ll identify a small handful of attorneys that might be a good fit and then have consultations with each one to find the best match.
Read more about working with an attorney during the coronavirus pandemic.
If COVID-19 leaves you without time or money to hire an attorney, you can safely make important estate planning documents yourself. For example, Nolo's Quicken WillMaker & Trust can help you make wills, living trusts, health care directives (living wills and health care powers of attorney), final arrangements instructions, and letters to survivors. You and your family can make all of these documents on your computer, from home.
Coronavirus will complicate finalizing some of your documents. Letters, documents that provide important details of your life, and many final arrangements do not need to be formally executed. However, several key estate planning documents require additional steps:
Getting appropriate witnesses may be difficult under stay-at-home orders. But creative workarounds are possible. For example, you could ask two neighbors to witness your will and the three of you could meet in your yard (at least six feet apart from each other). You would sign the document, walk away from it, and then have the other two come up to sign the will one at a time. You might have everyone bring their own pen.
Finding a notary might also be a challenge. Thankfully, many areas consider notary services to be an essential business. So although many non-essential businesses have shut down, most notaries can still work.
Many will travel to you, for an additional fee. Further, some states have expanded their notary laws to allow remote notarizations. The rules about this new process vary greatly from place to place. (For example, some states that allow notaries to work remotely, do not allow remote notarization of powers of attorney). So if you go this route, do what you can to vet the notary because it is the notary that will need to know the rules.