Estate Planning in an Emergency

Preparing an estate plan for a client often takes weeks or even months. However, there are times when creating and formalizing an estate plan is more urgent, and the plan must be completed immediately or as soon as possible. When operating under urgent conditions, counsel must focus on what can be accomplished in the time frame and within the client’s limitations. This article provides an overview of the key steps counsel should take and practical considerations counsel should consider with a client needing an estate plan in a time-sensitive situation or an emergency.

Preliminary Considerations

Expedited estate planning needs may arise in many situations, including when a client:

• Is diagnosed with a life-threatening illness.
• Must travel unexpectedly.
• Lives in a region predicted to experience life-threatening medical or environmental events.

When approached to prepare an estate plan on an expedited basis, counsel should determine:

• Whether the person needing the estate plan is an existing client or if a new engagement is required (see under Engagement, below).
• Whether the client has the capacity to execute the required estate planning documents. Each estate planning document may require a different level of capacity to be valid (see under Capacity, below).
• The nature of the emergency, which may dictate the timeline, the client’s abilities to participate in the planning process, and the options available to the client (see under Timeline, below).
• What estate planning documents the client needs. All estate planning clients typically need:
  • one or more instruments to transfer the client’s assets to the intended beneficiaries at death. This is generally done through wills, revocable trust instruments, joint titling, and beneficiary designations;
  • guardianship designations for minor children, which can be done in a will or stand-alone instrument;
  • advance health care directives; and
  • financial powers of attorney.

(See under Prepare the Required Documents, below.)

• If the client is physically able to visit counsel’s office to sign the documents and whether the client is physically able to sign the documents (see under Execute the Documents, below).
• When the engagement ends (see under Conclude the Representation, below).

Engagement

When representing a client in an emergency situation, counsel are often anxious to begin the work and complete the necessary documents as soon as possible to ensure the client can sign the documents before the client’s status changes. However, counsels’ ability to begin immediately depends on the circumstances, including whether the client requesting an emergency estate plan is an existing current client or a new client.

Existing Clients

Ideally, when counsel must create or amend an estate plan in an emergency situation, counsel have an existing attorney-client relationship with the client and therefore do not need to formalize the engagement or run a conflicts check. In this case, if an existing client reaches out to the client’s attorney in an emergency, the attorney can generally begin work immediately on the specific emergency documents the client needs.

However, even with an existing client, counsel should ensure that:

• The prior work that counsel completed for the client (if any) did not already complete the engagement under the terms of an existing engagement letter. If the prior engagement ended, counsel should formalize the new engagement as needed under state ethics laws.
• Counsel have the most current information from the client to the extent updated information is necessary.

New Clients

Counsel may be asked to create an estate plan for either:

• A former client whose engagement with counsel formally ended.
• A new client who has no estate plan in place or has estate planning documents created by a previous counsel.

These situations can create liability concerns for counsel because even when approached to prepare an emergency estate plan, counsel are subject to the same ethical duties as with a non-emergency estate plan. These duties generally include the need to:

• Run a conflicts check to ensure there are no conflicts that prohibit counsel from representing the client.
• Identify the scope of the representation and communicate the costs of the representation to the client. This is typically done through a formal engagement letter, though formal engagement letters are not always required (see, for example, Kubin v. Miller, 801 F. Supp. 1101, 1115 (S.D.N.Y. 1992) (focusing on the words and actions of the parties rather than formal engagement, quoting People v. Ellis, 397 N.Y.S.2d 541, 545 (Sup. Ct. N.Y. Co. 1977))). An engagement letter generally outlines the expectations and duties of counsel and the client and the fees the attorney will charge for the work.

If counsel are approached by a non-client and asked to prepare an emergency estate plan, counsel should ensure that there is no conflict of interest that prevents counsel from representing the client and the client should sign a formal engagement letter whenever possible. Where a formal engagement letter is not required or cannot be obtained because of the emergency nature of the representation, counsel should at a minimum:

• Explain verbally the scope of the engagement.
• Explain verbally the anticipated attorney’s fees or billing rates for the work.
• Document the file with a memo explaining what was communicated to the client.

Obtaining Necessary Information

When beginning a new attorney-client relationship, counsel should obtain initial background information from the client that counsel can use to evaluate the client’s estate planning needs. Counsel typically do this through some form of estate planning questionnaire. In an emergency, there may not be enough time to send the client an estate planning questionnaire or for the client to complete the questionnaire. In this case, if the client cannot complete the questionnaire or if time does not allow for it, counsel should:

• Obtain this information verbally.
• Prepare a memo to the file with this information.

An estate planning questionnaire generally includes a substantial amount of information to help counsel understand the client’s asset profile and family structure. While this information is always useful, it may not be crucial in an emergency. Counsel should focus on the information that is easily accessible to the client and that is most important given the circumstances. Counsel should ensure that, at a minimum, counsel have or obtain a current list of:

• The client’s financial assets.
• The names and contact information of the client’s key advisors (for example, accountants and financial advisors).

Even if counsel do not need this information to prepare the estate planning documents that the client is requesting, obtaining this information is generally key, particularly for a client who is both:

• Planning because of an emergency that involves a risk or certainty of death in the near term.
• Not otherwise organized with their financial assets or who does not have a spouse, partner, or other person in their life who is aware of the client’s assets and advisor information.

For example, a client may have an existing will that disposes of the client’s assets in the way the client wishes and may request that before a risky surgery, counsel prepare a power of attorney and advance health care directive for the client. In this case, counsel may not need the client’s asset and advisor information to prepare the requested documents. However, if the client dies, having this information in an organized way is helpful to the client’s loved ones and helps to make a possible probate proceeding more efficient.

In addition to obtaining this information, whether the client is a new or existing client, counsel should meet with the client either by phone, video conference, or in person to discuss the client's wishes and evaluate the client's mental capacity (see under Capacity, below). 

Liability Issues for Counsel to Consider in an Emergency

When representing a client in a time-sensitive emergency, counsel may be tempted to forego certain standard procedures such as conflicts checks, engagement letters, or having the client complete an estate planning questionnaire in an effort to save time. Counsel generally want to help clients and give them peace of mind that their wishes will be carried out even if there is not sufficient time to follow all of counsel’s customary procedures.

However, counsel must understand that:

• Regardless of whether the client signs an engagement letter or provides background information, the attorney-client relationship is likely established once counsel meet with a client, and is certainly established once counsel begin work on the individual’s estate plan (ABA Model Rule 1.18).
• Preparing an emergency estate plan without full and adequate background information may result in litigation because the plan did not properly account for the client’s assets or preferences.

An attorney’s standard protocols for new clients are usually developed to comply with the attorney’s legal and ethical obligations and are generally for the protection of both the client and the attorney to ensure a clear understanding of the attorney’s and the client’s agreement for planning. Counsel should make every effort to comply with these protocols even in an emergency situation and must proceed with extra caution in an emergency situation with an individual who is not an existing client or who was a former client but whose engagement concluded.

Capacity

Clients must have appropriate mental capacity to create an estate plan. The required mental capacity varies depending on state law and the instrument being executed. For example, the capacity to execute:

• Testamentary instruments, such as wills or revocable trusts with testamentary gifts, varies from state to state. Even within this category, the required capacity may vary depending on whether the document is a will or a trust instrument or how complicated the instrument is.
• Advance health care directives is often the relevant state’s definition of a competent adult or an adult having capacity (for example, §§ 765.101(18) and 765.202(1), Fla. Stat., Cal. Prob. Code § 4609).
• Powers of attorney varies under state law but may require the client to have the capacity to contract, the capacity to understand the nature and consequences of executing the power of attorney, or to be able to manage the principal’s affairs and property effectively.

Counsel should:

• Determine that the client has the requisite mental capacity to execute the necessary estate planning documents.
• Document the file with the facts and circumstances regarding the determination that the client has the requisite capacity. This may be important if the emergency is caused by an illness that can compromise the client’s mental capacity. Additionally, counsel may want to consider:
  • having additional witnesses ready to testify as to the client’s capacity if necessary; and
  • recording the execution ceremony in an effort to prove the client has capacity when estate planning documents are signed. If recording an execution ceremony, counsel should weigh the benefits of having a recording of the ceremony against the potential risks. Sometimes, a client that appears healthy in person may appear weak and vulnerable on camera or a move or gesture (such as the client hesitating before signing the document) might be construed as reflecting a lack of capacity. This is particularly true in emergency declining health situations. In extenuating circumstances such as the 2019 novel coronavirus disease (COVID-19) pandemic where limited in-person contact is permitted, a recording may be useful as evidence of how the documents were signed (for example with witnesses present or on the other side of a window) and as evidence that the plan being put in place is a true reflection of the client’s wishes.

Timeline

The nature of creating an emergency estate plan generally means that the planning is done on an expedited basis. However, different types of emergencies require different levels of urgency. Counsel must:

• Determine the timeline in which the client needs the estate planning documents to be signed. This is typically:
  • before surgery for a known upcoming procedure;
  • before planned travel; or
  • as soon as possible for an impeding uncertain emergency or for a client with rapidly declining health issues.
• Prepare the necessary estate planning documents before the client’s deadline with sufficient time to ensure the client can review and understand the documents before signing them.

If, because of the nature of the emergency, there is not sufficient time to send the documents to the client to review, counsel should:

• Read through the documents with the client when the client executes the documents, before the client signs.
• Ensure the client understands the documents and that they reflect the client’s preferences.
• Document the file to indicate that counsel did this.

Prepare the Required Documents

Once the client engages counsel and counsel determine the client’s timeline and capacity, counsel must prepare the necessary estate planning documents. In an emergency, the attorney must understand the client’s immediate concerns and determine what must be prepared to address those concerns. The attorney may likely need to decide what to recommend based on the facts provided by the client.

Depending on the client’s needs, a basic estate plan generally includes:

• A will or other testamentary document disposing of the client’s assets. If a client is mostly concerned with immediate health care and financial decisions, counsel can create a basic will tracking typical inheritance laws that names the client’s desired estate representative (generally referred to as an executor or personal representative) (see under Testamentary Instruments, below).
• Guardianship designations and other informal arrangements regarding childcare in an emergency situation that may incapacitate the client (usually made in the client’s will) (see under Guardianship Designations and Other Childcare Arrangements, below).
• Advance health care directives to appoint a client’s health care decision makers and where the client can express the client’s preferences regarding health care decisions (see under Advance Health Care Directives, below).
• A financial power of attorney, which authorizes an agent to act regarding the client’s financial assets (see under Financial Powers of Attorney, below).
• Information regarding and access to online accounts. Some clients may want to ensure certain individuals, either during the client’s life or at the client’s death, can easily access the client’s online financial and social media accounts (see under Access to Online Accounts, below).

Testamentary Instruments

Counsel generally must prepare one or more instruments for the client that transfer ownership of the client’s assets at death to the client’s intended beneficiaries. The relevant testamentary instruments may include:

• A will drafted by the attorney (see under Will Drafted by Attorney, below).
• A holographic will (see under Holographic Will, below).
• A revocable trust (see under Revocable Trust, below).
• A codicil (see under Codicil, below).
• Beneficiary designations and joint ownership (see under Beneficiary Designations and Joint Ownership, below).

Will Drafted by Attorney

Wills are generally the most common method for transferring assets at death. Formal, attorney-drafted wills typically have strict execution requirements that must be followed to be valid.

Holographic Will

Some states may allow a testator to execute a holographic will, which is typically a will solely in the testator’s handwriting that does not have to be notarized or witnessed (for example, La. Civ. Code Ann. art. 1575, NRS 133.090). In an emergency where witnesses and notaries are not available, a holographic will may be a more suitable option and is generally used in one of two ways:

• In simple situations, a holographic will may be used alone and may be sufficient for a client’s desired estate plan. For example, if an individual wants to make sure the individual’s entire estate goes to a spouse or child, the individual can include these simple wishes in a handwritten will and should also be sure to name a person to oversee the administration of the individual’s estate (referred to as an executor or personal representative in most jurisdictions). If holographic wills are valid in the client’s state, this may be sufficient, particularly in an emergency when other options are not available.
• In more complex situations, and in states where trusts have different and more relaxed execution requirements than wills (such as no requirement for witnesses or a notary), a holographic pour-over will written out by the client may be used to direct all of the client’s assets to the client’s revocable trust. This can be combined with a revocable trust instrument drafted by counsel to implement the client’s desired estate plan. In this case, the holographic pour-over will can be simple and the trust instrument can include more complex provisions but be signed without the additional formalities required for a non-holographic will.

Revocable Trust

Revocable trusts are frequently used to hold assets during a client’s life, and they can be used as a means to transfer assets at the client’s death. Some states have more relaxed execution requirements for revocable trust instruments than they do for wills. This may allow creative planning opportunities in an emergency or in a situation such as the COVID-19 pandemic when formal execution of estate planning documents is challenging because in-person contact is limited.

Revocable trusts may be easier to create in an emergency because in some cases they avoid the formal execution requirements for creating a will. However, they are generally not the best choice in an emergency situation because although they may be easier to create, they do not control any assets other than those assets that are validly transferred to the trust, and transferring assets to the trust may create the same logistical difficulties that the client was attempting to avoid by creating a trust instead of a will. Funding is generally accomplished by either:

• Transfers during the client’s life, which may not be possible when putting together an estate plan quickly in an emergency.
• A pour-over will, which transfers the client’s assets to the trust at the client’s death.

If the trust cannot be validly funded during life, and the client cannot validly execute a pour-over will to fund the trust at death, there may be no way to fund the trust. In this case, because the provisions in the trust instrument only apply to assets held by the trust, despite the trust having been easier to create, it will not serve its purpose of governing the disposition of the client’s assets. Therefore, depending on the circumstances, a revocable trust may not be preferable over a formal, attorney-drafted will because along with the revocable trust, the client would still need to execute a formal, attorney-drafted pour-over will unless the client has any of the following:

• Sufficient time to transfer assets to the trust.
• A pre-existing pour-over will that already directs the client’s assets to the trust. This is most likely if the client is amending an existing revocable trust instrument rather than creating a new one.
• The ability to create a simple holographic pour-over will with the revocable trust, which varies based on state law.

Codicil

If a client already has a will and only minor changes are needed, it may make the most sense for the client to execute a codicil instead of an entirely new will. A codicil may shorten the time required to prepare the document. However, because codicils generally must be executed with the same formalities as a will, preparing a codicil should not simplify or otherwise affect the required signing formalities (Unif. Prob. Code §§ 1-201(57) and 2-502).

Beneficiary Designations and Joint Ownership

Clients may own assets that do not pass under the client’s will or trust instrument but rather under beneficiary designations or by joint ownership. Counsel should review any beneficiary designations or joint accounts the client may own and work with the client to update these designations as quickly as possible.

Guardianship Designations and Other Childcare Arrangements

In emergency and non-emergency situations, clients with minor children should nominate a guardian for those children who will only be appointed if the need arises. A client can typically include a guardianship designation in either:

• The client’s will.
• A stand-alone guardianship designation form.

Guardianship designations are generally considered most frequently in relation to the death or incapacity of both parents. However, in the case of a potential temporary incapacity or unavailability of both parents, the client should also consider the practical need for someone to be able to take care of the client’s minor children on a short-term or temporary basis. This may either:

• Be as simple as ensuring the client has communicated with a family member willing and able to take care of the minor children temporarily.
• Require additional estate planning documents, depending on the timeframe and circumstances. Some states may have separate guardianship processes that may be helpful in specific situations, such as standby guardianships, emergency temporary guardianships, or preneed guardianships (for example A.C.A. § 28-65-221(a), Cal. Prob. Code § 2105, and 14 V.S.A. § 2626). However these types of guardianships generally require court appointment and might not be available in an emergency. A formal guardian appointment by the court may be required in certain situations such as, for example, when school or medical forms need to be signed for the child, or as short-term care becomes long term.

Court-Appointed Guardians at Death or on Incapacity

Guardianship designations found in wills or valid stand-alone guardianship designation forms are typically effective to have the court appoint the named guardian at the client’s death or incapacity. If one parent dies or is incapacitated, the surviving parent is generally the default guardian. However, both parents should have guardianship designations in place for common emergencies and disasters.

Though all parents of minor children should have guardianship designations, this is particularly important for single parents where the minor child has no other living parent or does not have another parent who can serve as guardian for any reason.

Formal guardianships are generally overseen by the courts and may take time to implement.

Temporary Care of Minor Children During Client’s Life

In addition to a formal guardianship designation that applies at a client’s death or incapacity, counsel should ensure the client considers the best way to arrange care for the client’s minor children during a temporary or potential temporary emergency where a court guardianship may not be advisable or possible.

For example, if clients request an emergency estate plan because both parents of minor children are traveling together, the clients’ primary concern may be that a guardian be nominated in their wills in case of an accident during travel that results in their deaths. However, counsel should also consider whether there is a mechanism under state law that allows someone else to be named as the child’s medical decision maker if the parents cannot be reached during their travel.

In addition, in situations like the COVID-19 pandemic, parents may want to name a guardian to be appointed at their deaths. However, they may also want to ensure a family member or other trusted person is available to care for their minor children in case both parents become temporarily incapacitated because of complications related to a potential illness. In this case, the clients should consider the general factors considered when selecting a guardian for their minor children. These factors include the guardian’s relationship with the children, level of reliability and responsibility, judgment, and knowledge of the parents’ preferences for their children.

However, while clients frequently plan for grandparents as temporary care providers for situations such as travel, for an illness such as COVID-19 that may disproportionately pose a danger to older individuals, the clients should also consider the age and safety of the individuals when deciding who is available to care for their children if it becomes necessary.

Advance Health Care Directives

Most commonly, advance health care directives allow an individual to either:

• Appoint an agent to make health care decisions for the individual on the individual’s incapacity (see under Advance Directives Naming Health Care Agent, below).
• Direct specific end-of-life and health care treatment decisions for the individual if the individual is unable to communicate or make the decision themselves at the relevant time (see under Advance Directives Regarding End-of-Life Care, below).

Advance Directives Naming Health Care Agent

Advance health care directive forms and rules vary from state to state. Advance health care directives naming a health care agent include:

• Health care proxies (for example, N.Y. Pub. Health Law §§ 2980 to 2994).
• Designations of health care surrogate (for example, §§ 765.101(1) and 765.202, Fla. Stat.).
• Health care or medical powers of attorney (for example, Tex. Health & Safety Code Ann. § 166.164).
• Advance directives for health care (for example, Md. Code Ann., Health-Gen. §§ 5-601 to 5-626).

Advance health care directives appointing an agent are important when the default rules that apply under state law when a person does not nominate their own decision maker do not prioritize or allow appointment of the person the individual is likely to want to act. This is most frequently the case for a client with:

• A partner to whom the client is not married. If a client wants a partner to be the client’s health care decision maker, the client should appoint the partner in an advance directive because default state law may not otherwise authorize an unmarried partner to be a decision maker.
• A close relative or relatives who may be the default decision maker under state statute and who the client wants to be sure is not authorized to make decisions for the client. Naming an individual that the client prefers can help avoid this.

Advance Directives Regarding End-of-Life Care

Advance health care directives that allow an individual to dictate and direct their own health care treatment decisions to health care providers, including instructions regarding life sustaining treatments such as artificial nutrition and hydration, include:

• Living wills (for example, 10 NYCRR § 400.21).
• Directive to physicians (for example, Tex. Health & Safety Code Ann. § 166.032).

Financial Powers of Attorney

Estate planning clients in a non-emergency situation generally execute powers of attorney. These are documents that name an agent to manage the client’s financial affairs. Because an agent’s authority under a power of attorney typically terminates on the principal’s death, whether a client needs to sign a power of attorney in an emergency situation depends on the circumstances and the emergency:

• If the client may become incapacitated and wants someone to access to the client’s financial accounts and other assets to make gifts, pay for the client’s care, or handle the client’s day-to-day financial affairs, a power of attorney is useful. Counsel should create and the client should sign one as soon as possible.
• If the client’s death is imminent and the client is not looking to make any pre-death transfers but needs to ensure the client’s affairs are in order before the client dies, a power of attorney may not be necessary.

If there is time and the ability for the client to sign a power of attorney, the client generally should execute a power of attorney naming an agent to manage the client’s financial matters. In situations where the client’s death is imminent, even a hospital stay for more than a few days may require the client to have an agent in place to make financial decisions and address seen and unforeseen expenses during the rest of the client’s life.

Access to Online Accounts

Clients often have numerous online social media, email, and financial accounts or cryptocurrency all controlled by different passwords and institutions. Counsel should discuss this with the client and determine whether the client wants to provide passwords to:

• Specific financial types of accounts in case someone needs to access the accounts while the client is living but incapacitated or obtain information about the accounts after the client’s death.
• Social media or email or any other online accounts if they want family members or friends to have access to that information after they die or become incapacitated because otherwise that information may be hard to obtain after the client’s death.

A client may want to provide this type of information to the individual the client appoints as the client’s agent under a financial power of attorney, who is commonly also the person the client names as the personal representative or executor of the client’s estate.

However, if the client wants to keep these accounts private, counsel should note that for the file and request that the client prepare a personal memorandum with this information that the client’s executor or personal representative can obtain after the client’s death.

Execute the Documents

Each estate planning document has specific execution instructions dictated by state law. Counsel must review state law and ensure the proper instructions are followed.

When witnesses or notarization are required, counsel must consider the nature of the emergency and potential global impacts when advising the client regarding document execution. For example, during the COVID-19 pandemic, because of social distancing recommendations and client concerns regarding potential exposure to the coronavirus, documents that require witnesses and notarization under state law may be difficult to execute properly or in a way that clients feel comfortable with. While some states have authorized remote witnessing and notarization on an emergency basis to address these concerns, when this is not permissible and the client is signing the same papers at the same time as witnesses or a notary, counsel should consider the physical concerns that may arise. To address these concerns, counsel may request, for example, that each party wear a mask, bring their own pen, and limit the amount of time they touch the relevant papers. Also, when possible, clear partitions can be used to separate the individuals in an execution ceremony to limit exposure to each other. When in person witnessing is required and a client wants to avoid any physical contact at all, counsel may need to be creative to ensure the witnesses see the client sign the relevant instruments. For example, counsel may suggest that witnesses watch a principal sign the relevant document through a window.

Counsel may need to be creative to ensure witnesses see the client sign the relevant instruments. Counsel should also consult state executive orders, which may relax execution requirements in this type of global situation.

Conclude the Representation

Counsel should communicate to the client that the representation ended when the client signs the estate planning documents and counsel deliver them to the client. Counsel can accomplish this both by defining the scope of the engagement in an initial engagement letter and by following up with a letter once the documents are signed, delivered, and counsel send the bill for the attorneys fee. Counsel should maintain paper or digital copies of all the client’s estate planning documents.