At MacElree Harvey, the health and well-being of our clients and employees are of the utmost importance. We are still trying to understand the impacts of COVID-19 and the community’s efforts to flatten the curve of infection, but it appears clear that ‘social distancing’ will be the new normal for at least the next few weeks. This will temporarily change the way we work with clients to prepare and sign estate planning documents, but it will not make drafting or changing a plan impossible.
Now more than ever, it is important to review your estate plan and confirm it still meets your present intentions. Although circumstances have changed, we are still working diligently to ensure our clients can get the critical estate planning documents they need, and we have invoked the use of phone and video conferencing to meet, review, and assist clients with executing documents.
As we invoke these temporary changes to assist clients over the next few weeks, it is important to understand the signing requirements for what we refer to as the critical estate documents. These documents include the following:
- Last Will and Testament
- Durable Power of Attorney for Finances
- Health Care Power of Attorney and Living Will
Last Will and Testament
In Delaware, a valid Will must be in writing and signed by the Testator in the presence of two credible witnesses. Delaware permits a beneficiary under the Will to sign as a Witness. In Pennsylvania, a valid Will must be in writing and signed by the Testator at the end of the document, but witnesses are not required.
In both states, the Will may be made “self-proved” by a Self-Proving Affidavit of the Testator and two witnesses in front of a Notary Public, which simplifies the probate process. However, if you are unable to access a Notary during this time, a valid Will can still be executed without a Self-Proving Affidavit.
Durable Power of Attorney for Finances
In Delaware, a Durable Power of Attorney must be in writing, signed by the Principal, dated, and signed in the presence of one disinterested witness and a Notary Public. In Pennsylvania, a Durable Power of Attorney must be in writing, signed by the Principal, dated, and signed in the presence of two witnesses (who may not be the agent designated in the power of attorney) and a Notary Public.
Health Care Power of Attorney and Living Will
In both Delaware and Pennsylvania, a Health Care Power of Attorney and Living Will must be in writing, signed by the Principal, dated, and signed in the presence of two disinterested witnesses. Notarization is recommended but not required.
In addition to executing critical estate planning documents, we also encourage clients to review beneficiary designations on any life insurance policies and retirement assets. These designations overrule the terms in a Will, so it is critical they be reviewed and updated accordingly as part of this process.
At this time, our Pennsylvania offices remain operational and we are assisting our clients virtually. In addition, our Delaware office is open and available for in-person execution of these critical documents. Alternatively, and to ensure everyone’s continued health and safety, we can prepare critical estate documents by phone, video conferencing, and email. Once the documents are finalized, we can either email or mail the documents with signing instructions, and also be available by phone or video conferencing to oversee the signing to make sure the documents are signed according to law and become valid.
We will always recommend that critical estate planning documents be signed, witnessed, and notarized in our presence, but we understand that the next few weeks will present challenges, and those challenges should not preclude someone from having the opportunity to draft or change their estate plan. We remain willing and ready to assist our clients and to provide peace of mind during this uncertain time.
If you have questions or need assistance please contact Tara Stark at [email protected] for any Delaware related questions or Stephen Porter at [email protected] for any Pennsylvania related questions. Thank you.
