Preparing, Signing and What Can Serve as a Will During COVID-19 Pandemic: Michigan Estate Planning & Elder Law Blog

August 17, 2020

Preparing a Will During a Pandemic

Handwritten Will The COVID-19 pandemic has caused many people to realize the need to create a plan for if the worst should happen. One of the most important components for ensuring a smooth process after death is executing a will. A will provides the will-maker (referred to as the “testator”) with directions to a personal representative for the administration and distribution of the testator’s estate after the testator dies.

Although it may be difficult to think about planning for after death even in “normal” times, the pandemic has created many hurdles and questions related to properly preparing and carrying out a will. For example, is there an alternative to working with a lawyer to create your will? If you do work with an attorney, how can you meet to discuss preparing a will when you are sheltering in place? Is it possible to execute a will from the comfort of your own home?

What Can Serve as a Will?

While some states have enacted legislation specifically addressing the requirements for an electronic will, Michigan has not. Despite the lack of legislation on the matter, a recent Michigan Court of Appeals case recognized an electronic note stored on a phone as a will. However, given that this is a developing area of the law, relying upon an electronic writing to serve as a will (such as an email or a note stored on a phone) is certainly risky.

In contrast, a much more established “do-it-yourself” way to create a will is through a holographic will. A holographic will is a will in the testator’s handwriting. Michigan recognizes holographic wills if the will is in the testator’s handwriting, signed by the testator, and dated. If you feel that you must create your own will, without the assistance of an attorney, a holographic will is likely a better route than any form of an electronic writing.

Creative Solutions to Signing a Will Prepared by Your Lawyer

Of course, while many different forms of writing could potentially serve as a will, it is a best practice to have your will prepared professionally by a lawyer. A lawyer will be able to prepare your will with all of the necessary components, such as the nomination of a personal representative and the terms for the distribution of the estate. Furthermore, a lawyer will have experience in observing the formalities of implementing a traditional will, which reduces the risk of litigation related to the validity of the will.

However, many people are concerned about how they can meet with their lawyer to discuss their will and sign their will once prepared. Many lawyers have come up with creative solutions to meet with clients to discuss estate planning. For example, lawyers may be able to meet with you by phone or through videoconferencing software, such as Zoom or Microsoft Teams.

Additionally, the State of Michigan has implemented some flexibility for the execution of wills during the pandemic. Currently, Executive Order 2020-158 allows remote witnessing of wills in Michigan through August 31, 2020. Although there are many requirements that must be followed for remote witnessing, a lawyer will be familiar with those requirements to make sure the process of signing your will is in compliance with the Executive Order and goes as smoothly as possible. Most importantly, in order to execute your will in compliance with the Executive Order, you must be able to use videoconferencing software, such as Zoom, when signing your will.

So what if you do not have the capability to use videoconferencing software to execute your will in compliance with the Executive Order? There are still other solutions that could be used to allow you to carry out your will. For example, your lawyer may be willing to meet you in a public park so you can social distance in an outdoor area while signing your will. Alternatively, your lawyer could utilize a “curbside” will signing and you can execute your will from the safety of your own vehicle. Another option could be to meet with your lawyer on your front porch so you can observe social distancing requirements while avoiding any travel.

There are numerous options for meeting with a lawyer to discuss your estate plan and enact a will, even in these unusual times. Now, more than ever, it is important that you are planning for the future and have an estate plan in place to give yourself and your loved ones peace of mind.

If you have further questions about what can serve as a will, how to craft one or other estate planning questions in general, contact a Foster Swift Estate Planning attorney or one of the authors of this article: