One common theme across all industries and professions is that the COVID-19 Pandemic has drastically changed the way people work and do business. By necessity, we have been forced to adjust to a world where direct, personal interactions became non-existent, limited or altered by the need to wear protective coverings and to socially distance from others. Working in the trusts and estates field has been a typical example of this.
The entirety of my career and the careers of my colleagues have focused on personal interactions with our clients, colleagues, adversaries and court/government officials. Few other fields of law required so much personal interaction and under the rules and laws of New York state, it was mandatory. COVID has forced both practicing planners and the courts/agencies they work with to make alterations to how things are done which, while not illogical from a practicality perspective, have long been resisted.
The execution of testamentary documents has long been a very formalized and rigid process. To execute a will that will be accepted by the New York Surrogate’s Court, an individual was required to sign the document in the presence of two witnesses. In addition, to avoid the need to produce affidavits from the witnesses at the time of the person’s death, a self-proving affidavit signed by the two witnesses had to be affirmed and signed by a notary public. For non-testamentary documents, such as trusts and other agreements, a notary’s signature was also needed.
In April, in response to the continued stay-at-home order imposed by New York, Governor Cuomo issued two separate executive orders which allowed for the execution and notarization of documents using video conferencing software such as Zoom or Facetime. The requirements of witnesses and notary acknowledgment remain, but the need for people to be present in the same place at the same time was no longer required. These orders were a much-needed lifeline for clients and planners alike to ensure that the safety of all parties was maintained while also allowing the needed work to be completed in a timely and proper manner.
A majority of courts in the Unified Court System have used electronic filing of documents for years prior to the Pandemic. The Surrogate’s Court, with very limited exceptions, had long resisted any form of filing aside from in-person filing. Given the importance of original documents and the need for court clerks to provide individuals with instructions on changes and/or additional documents, it was not completely unreasonable.
COVID-19 did not automatically change this. The Surrogate’s Courts throughout New York were no less affected by the Pandemic and many petitions before the court were put on hold as in person work at the courts slowed down or stopped at the courts. With exception of emergency filings, new filings were suspended temporarily, a huge problem at a time when the annual mortality rate was rapidly increasing.
By early summer, most New York counties began allowing e-filing of petitions and documents for the very first time. A few courts (Rockland County most notably) did not follow suit and only allowed mailed in documents to be accepted. While this allowed existing and new matters to resume being processed, the shutdown/slowdown caused a very long backlog for many courts. In some counties, no new citations or court dates were being issued well into the late summer. Additionally, the increased mortality rate from COVID has increased the number of new applications and estate.
It is unclear of these recent changes will remain once the Pandemic has subsided and in-person business becomes more prevalent. Beyond the mechanics of how business is done, the state of the world and the court system makes planning in 2021 and beyond a larger challenge than it has been in previous years. As the means of planning and administering estates has changed, so too must the strategies we employ to ensure individuals and families are properly protected.
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