Estate Planning and Probate

The estate planning process designates who will receive assets and handle responsibilities after a person dies. It also sets forth how to handle health and financial decisions when someone is incapacitated. Estate planning documents include wills, trusts, powers of attorney, and advance directives. Estate planning is essential for a variety of reasons: 

• It provides guidance for those making medical and financial decisions when someone is incapacitated. 
• After death, it ensures that assets are distributed in accordance with the wishes of the person who died. This can help avoid family disputes. 
• It simplifies the probate process, making it faster and less costly. 
• It can minimize estate taxes. 

The COVID-19 pandemic has emphasized the importance of completing the estate planning process. It has also underscored the difficulty of doing so during a pandemic. Older adults are more likely to experience severe symptoms of COVID-19, be incapacitated, and die. As a result, they have been advised to avoid in-person interactions whenever possible. This has led to a surge of interest in online estate planning, which eliminates the need for paper documents and in-person meetings. It can make it much easier for people to complete the estate planning process at any time. It could also lead to fraud if appropriate consumer protections are not put in place. 

Wills: Fewer than half of Americans make a will. Older adults are no exception. A 2016 Gallup poll found that more than 30 percent of people age 65 and older did not have a will, nor did more than 40 percent of people age 50–64. Many draft one but never complete the process by signing it and having it witnessed. 

In 2019, the Uniform Law Commission, a nonpartisan, nonprofit organization, drafted legislation that could facilitate online wills. The Uniform Electronic Wills (E-Wills) Act would allow for electronic signatures of the person writing the will (known as the testator) and two witnesses. The E-Wills Act also allows electronic wills to be recognized across states while preserving certain legal protections of paper wills. Utah became the first state to enact the E-Wills Act in 2020. In addition, a Florida law on electronic wills and other legal documents went into effect in 2020. The model act does not address another important issue, how to safely store wills. Florida’s law requires that they be held by a qualified custodian. But this is not included in the model act. 

Notarization makes wills (whether in paper or electronic) “self-proving.” This means that the witnesses are not required to testify in probate court if the will is contested. 

Trusts: A trust is a legal entity that owns the property and assets placed in it. It is managed by a trustee. One benefit of trusts is that they do not go through probate court when a person dies. Therefore, they transfer assets very quickly. They also are not public, ensuring privacy for the benefactor and beneficiary. State laws governing trusts vary considerably. This inconsistency may present problems for people who move to another state upon retirement. In 2000, the Uniform Law Commission adopted a Uniform Trust Code to help improve the certainty and predictability of trust interpretation by the courts. It also helps reduce trust preparation costs for consumers. 

Powers of attorney: A power of attorney (POA) is a signed legal document in which a person appoints someone else, commonly referred to as an agent, to act on their behalf. Federal agencies sometimes have separate programs to do this. For example, the Social Security Administration does not recognize powers of attorney. Instead, it will appoint a “representative payee” to manage another person’s Social Security account. Similarly, the Department of Veterans Affairs appoints its own fiduciaries. 

Powers of attorney are sometimes limited to a particular purpose or period. Other times they are general. This allows the person authorized to use the POA to act indefinitely regarding all matters. Another type is the “springing” power of attorney, which “springs” into effect only if the granting person becomes incapacitated. Increasingly, such powers are made “durable.” That means the powers continue if the person granting the POA becomes incapacitated. 

A POA is private. Unlike guardianship, there is no court oversight (see also this chapter’s section on Adult Guardianship). State laws often are unclear about the role and responsibilities of those signing and accepting powers of attorney. The combination of broad consent, lack of oversight, and unclear duties can make it possible for a POA to be misused. In 2006, the Uniform Law Commission approved a revised Uniform Power of Attorney Act. This act established a set of default rules to increase uniformity of laws governing powers of attorneys across states. 

Caregivers and elder law attorneys frequently complain that financial institutions improperly refuse to accept a POA. Such refusals can create hardships for people who need designated surrogates to act on their behalf. This is especially important when the person who executed the POA now lacks the capacity to create a new one. It is unclear why financial institutions refuse to accept powers of attorney. Many state laws provide broad protection for financial institutions that accept powers of attorney in good faith, consistent with the Uniform Power of Attorney Act (UPOAA). In addition, the UPOAA provides a safe harbor for a financial institution and other third parties that refuse to accept a POA. The protections apply when the third party believes that the person who holds the power of attorney may be financially exploiting the person who granted it to them. 

Advance directives: Advance care planning is the process people use to decide how they would like to be treated if they are no longer able to care for themselves. An advance directive lets these wishes be known. The directive also appoints someone else to make decisions on the person’s behalf if they are unable to do so. Advance directives include living wills, health care powers of attorney, and combined forms. Every state allows advance directives, but requirements vary by state. Advance directives executed in one state may not be valid in other states. Another problem arises when health care providers do not follow through on advance directives. Those without advance directives may have surrogates appointed to help determine care. 

Electronic and remote notarization: Electronic and remote notarization are two tools that can facilitate the notarization of estate planning documents. Electronic notarization allows a notary to use an electronic stamp on an electronic version of a document. The notary must still be physically present with the person making the will and witnesses. Remote notarization, on the other hand, does not require the notary o be physically present. The notary uses secure remote technology, such as a webcam, to ascertain the identity of those signing and witnessing the document and use an electronic stamp to notarize it. It is important that protections be in place, including: 

• verifying the identity of those who are signing the documents; 
• preventing tampering with documents after they are notarized; 
• creating a record of the notarization, including by recording remote notarizations; and 
• protecting against notary misconduct. 

During the COVID-19 pandemic, many states passed new laws to ensure that people could have documents notarized safely. As of 2023, 45 states and the District of Columbia allowed remote notarization, according to the National Association of Secretaries of State.  

Probate: Probate laws govern the transfer of property at death. Probate laws vary significantly by state. All estates, regardless of whether they include a will, are subject to review by state probate courts. However, without a will, probate is slow and more expensive. It also follows set formulas that may not reflect the wishes of the person who died. The many variations and complexities contribute to the misunderstanding of the probate process. They can also make it challenging for a surviving spouse to navigate the legal landscape at a difficult time. Delays and costs in state probate processes have led to confusion and dissatisfaction among heirs, beneficiaries, and estate administrators. A simpler probate system would facilitate the orderly transfer of property at death while also addressing other key issues. These include equitable assignment of costs, the need for qualified staff, and access to the courts for the resolution of disputes involving inheritance or debts of decedents. The Uniform Law Commission developed the Uniform Probate Code to simplify and clarify the probate system for the average consumer. Proper estate planning could also ease this process. 

Some states have enacted legislation authorizing nonprobate transfers of real property using transfer-on-death (or beneficiary) deeds. The real property owner may deed the property to a named beneficiary. The transfer becomes operative on the owner’s death (avoiding probate) and is revocable until then. 

Tangible assets are often the focus in probate. However, digital assets are increasingly important. These include e-mail, social media accounts, and photographs. In some cases, courts have not treated digital in the same way as tangible assets. In response to this problem, the Uniform Law Commission has approved the Uniform Fiduciary Access to Digital Assets Act. This would give executors and fiduciaries the authority to treat these digital assets in the same manner as tangible assets.