We are in the throes of the Coronavirus pandemic, and even though states are loosening stay-at-home restrictions, the impact on estate planners professionals, as well as their families, finances, and our country, will continue for some time. Estate planners have an incredible opportunity to help clients through this difficult time. However, to do so, we have to address how we can operate our practices though the challenges of remote work and more. A business disaster is defined as anything that interrupts the normal flow of business and the severity is a function of how long the business is impaired, and the severity of the impairment. For most or perhaps all estate planning firms, this pandemic is classified as a catastrophic business disaster. For some, the severity of the impairment is very significant. There have been numerous blogs and articles published in the last several weeks of firms that have had their partners stop drawing profits from the firm, had to drastically cut compensation for and laid off both associates and support staff, and still may not be able to weather the economic storm we are currently experiencing. Generally, 25% of businesses do not reopen after closing for a disaster. The long-term impact of Coronavirus on the viability of law firms is uncertain, but by taking proactive measures now, firms may reduce the impact.
What steps and considerations should practitioners, and their firms, take in these times?
Communication with Clients
What must we do to communicate with our clients? Some practitioners may be finding that their inboxes are flooded with questions and concerns from clients. How can the lawyers practically deal with that? Many practitioners might find that clients are hunkered down out of fear from financial impact, job loss, business declines, and health concerns. Reaching out to this group of clients, to provide both assurance and helpful but non-“salesy” information on how practitioners can help them, is vital. While stay safe messages matter, it is extremely important to provide relevant information.
The amount of information you choose to provide may vary depending on how you view your firm and how you prefer to communicate with clients. The authors suggest, however, that in trying times such as these, tending towards providing actionable information may be a better approach then communications that sound solicitous (e.g. “You should update your estate planning documents now.”).
Apart from the messaging, in order to communicate effectively, first, you need a database. Unfortunately, many practitioners or their firms do not have a centralized contact database of all their clients and would have no way to easily send out an email to their entire client base. If you have not thought about names and email addresses before, it is something that will be necessary to address going forward. This may be a practical and important step to take now. It may be feasible to electronically import whatever contact data you have into a contact manager or other system if that has not been done.
The COVID-19 pandemic is definitely interrupting the way we do business and we do not have any idea how long the impact will last. Having a central contact database as part of your disaster avoidance/recovery plan will allow you to maintain contact with clients even while the majority, if not all, of your staff is working from home. How clients will reach you and your staff is key information your clients need. Many people are accustomed to cloud-based systems and email, but it cannot be assumed that this is universally true.
Many simple internet mail services, such as MailChimp or ConstantContact, can pull in your contacts from your email contact list. Other programs, such as Contact Genie Multi-Port, will allow you to quickly create a spreadsheet of all contacts from programs such as Microsoft Outlook. If your firm uses Microsoft 365, you can pull the contacts of each practitioner into one contact database for the firm. If your firm’s practitioners each maintain their own database of contacts, you can have each practitioner create his or her own spreadsheet (often in Microsoft Excel), then combine those spreadsheets to import a “master list” into the mail service of your choice. However, any system wherein each lawyer within a firm maintains his or her own separate client database is inherently inefficient. While some practice management systems make it fairly simple to import email contacts saved by individual practitioners into one database, in the perfect world, this step would be unnecessary.
Once you have established a way to communicate, you need to decide what message you want to convey. For example, a message that says something along the lines of “fear is as contagious as the pandemic” may not sit right with those who have legitimate fears based on underlying health conditions that may put them more at risk than other people if they contract COVID-19. It is also important to be conscientious of the diversity in your client base, and how different clients might view a particular message.
Financial security is important, but the most important thing to everyone will be physical health and safety. It is important to craft messages carefully. Use sensitivity and compassion in any communication. Firms must express they are concerned for staff and clients alike. Health is the first priority, all other considerations come after.
Practitioners can also communicate important information that impacts their clients. For example, clients may need to address tax, legal, financial, and other implications due to both the pandemic, and the economic crisis that has developed because of it. Some clients may have health care proxies, living wills, and HIPAA release forms , or HIPAA issues that need revising to better address the unique circumstances of COVID-19. Some who have contracted COVID-19 require the use of ventilators to survive the virus. If a client has language indicating that they cannot be intubated in his or her living will, does that mean medical professionals will be unable to use a ventilator to treat them? What about remote or electronic authorization of decisions? Can an agent under a health care proxy or an agent under a financial power of attorney remotely authorize a third party to act? Few if any forms contain provisions addressing this as pre-Covid-19 this was not an issue. Perhaps, it is time to being addressing such considerations for our current Covid environment, but also in the future generally for many client matters. Clients and practitioners alike may have been thinking of a very different situation when those documents were signed or may not have even fully comprehended the ramifications of that language. Now is the time to inform your clients about the need to review these documents.
Your communique might include the impact of the financial markets on retirement plan spending, financial models, business succession plans, and other fiscal scenarios. There is an opportunity to build value for clients that way. Further, with the market volatility and impact on other investments, recommending that the client reach out to their experienced financial advisors may be worth encouraging so your clients can talk to someone who is an expert in those matters. This is also vital to provide objectivity to clients who might act out of emotion and fear rather than sound planning.
Tax Planning Opportunities
With tax planning, you can help clients navigate techniques to assure that clients can make irrevocable gifts that use estate tax (Federal, and potentially State depending on where your clients are domiciled) exemptions and still preserve access to the assets held in the trust. Planning, if handled carefully, can achieve a client’s goals of reasonable access to funds as well as bringing the assets outside of the estate taxation system.
In the late 1980s, several adverse things happened to the price of oil. It dropped tremendously and that hurt virtually all markets. Oil prices recently made similar moves as Russia and OPEC continued to struggle with market share and the international supply of oil. In addition, in the 1980s, there was one of the biggest downturns in the stock market in one day as a percentage, one that was even bigger than the drop we experienced at the start of the pandemic. In 1987, the value of everything went down. It was not just stocks, but real estate closely held business, and everything you can imagine. While the conditions in the 1980s created an ideal time to plan while asset values were depressed, many clients chose not to take advantage of that and do planning during that time. While the planning environment was ideal, fear and worries kept clients from planning. Today, we can and should educate and advise clients not only that this is the ideal time to do the planning, but that we know people are concerned about themselves and may not wish to take advantage of the opportunities presented now, just as they did not in the 1980s.
It could be terribly unsettling for a practitioner to suggest to a client, "I understand that your assets have recently dropped significantly in value. Well, now you should give those assets away because we can save estate tax for your children and grandchildren.” It may not sit so well when clients are worried whether they will have enough assets to support themselves through retirement. But there are practical planning solutions of using techniques that can shift assets out of the client’s estate but nonetheless preserve access to those assets. Consider non-reciprocal spousal lifetime access trusts, self-settled domestic asset protection trusts, use of loan provisions and tax reimbursement clauses in irrevocable trusts, etc. Not only can the assets transferred out of a client’s estate be made available in the event of need but the client may directly benefit from asset protection if done in the “right” way.
One of the things that may happen due the current crisis that we are going through is that taxes may increase dramatically. There has been significant economic stimulus and borrowing. The Coronavirus Aid, Relief, and Economic Security Act which was signed into law on March 27, 2020 included $2 trillion in additional debt for the fisc. And as this article is being written, Congress is considering a further relief package of $3 trillion more. It is unlikely the government can pay for that under the current tax regime. There will be tremendous additional debt and some of the steps taken to strengthen the budget may come as additional taxes which could hit the estate tax arena. Approaching clients about this subject must be handled deftly.
Practitioners can do quite a lot to help clients plan now and take advantage of low interest rates, low values, and risk of change from the 2020 election. Communicating this to clients in a positive manner that allays their concerns with the deprecation in their assets may help clients choose to plan when they may not have otherwise.
Practitioners should communicate with their clients in a way that encourages families to continue to connect and communicate during this difficult time using virtual meeting spaces. It would seem many of the even least tech savvy clients are familiar with Zoom at this point. Clients in family businesses may appreciate this resource.
In this era of social distancing, providing clients with means to maintain closeness with their families may be more appreciated than the tax advice practitioners can offer, and help practitioners become counselors for the family, rather than just a draftsperson.
Remote Access and Working from Home
Remote access is absolutely critical if your employees cannot work in the office because of state-wide shutdowns or a voluntary decision to stay separated. In the majority of executive orders governors have instituted in the shutdowns, exceptions for attorneys from the shutdowns have been very limited. Restrictions in some manner will continue to happen until the virus is under control.
There are many remote platforms that serve different business needs. For example, you can create meetings in GoToMeeting which allows for remote log in. There are other options available, such as the use of a VPN, Splashtop or GotoMyPC for persistent remote access to a certain desktop in the office. The concept of practice portability is often discussed. It should be part of your disaster avoidance and recovery plan. Practitioners can mitigate the severity of an interruption if the firm has the ability for practitioners to practice from anywhere.
One of the first steps for practice portability requires divorcing yourself from reliance upon analog or paper files. Some estate practices may require that they be completed in paper hardcopy, but that does not mean that all of your records cannot be scanned and maintained electronically, rather than stored in paper form.
Many law firms have both paper and electronic filing systems, yet they still rely on the paper one for day to day activities. As long as your firm maintains two filing systems, it is just doubling the work for both practitioners and support staff. Ultimately, firms do not get any benefit from going electronic until and unless practitioners start relying on the electronic file system and do not keep every sheet of paper. Reviewing your firm’s capabilities to work remotely due to the current pandemic also creates an opportunity to look at the firm’s file management architecture.
If your firm determines to go electronic, building a complete electronic file, and learning to rely on it, is a big part of implementing a document management system which provides full remote access. There are several document management systems that can be used to achieve this, including NetDocuments, Worldox, iManage Work, ShareFile, Dropbox, etc. Using a shared electronic document management system ensures that you and your colleagues have access to the full file. Worldox, iManage Work and most document management systems are server based (not cloud based) although they allow access via the web. The only one truly cloud based is NetDocuments which does not require users have any servers and the program is delivered via the web exclusively.
If your firm chooses to go completely cloud-based, it will give the practitioners the ability to access their work anywhere from any device connected to the internet. However, your cloud-based solution needs to be set up in way that you can easily access files, which should follow your office’s filing convention. Part of your firm’s search for a document management system should be to determine if the system you are implementing flows and works similarly to the current, paper-based system that the firm employs. Once the document management system is implemented and understood by firm members, it helps solve the issues that can arise if you are forbidden to go to your office to retrieve physical files. While there may be some time investment required, you will need to do the initial work to get documents scanned and electronically filed, and there are multiple storage systems available. If a file has not been active for a while, scanning can be deferred, and the file stored for the time being.
Beyond document management systems, there's web-based management and full accounting systems, like Cosmolex, Actionstep, Centerbase, Zolasuite, Clio, and more. There are several differences between the different programs. For example, Clio does not have full accounting. Clio has an option to link to programs such as QuickBooks or Zero to get the full accounting. However, Cosmolex, Zolasuite. and Centerbase offer complete case management, matter management, and full accounting. Trust account accounting, and accounts receivable are also available. These styles of programs act as an “all in one” system, which allow you to:
- Access the program from anywhere you have an internet connection.
- Have document management capability built in, so you can link documents and emails, journal web and phone calls, and any additional bit of information related to a case or matter. Anything you put into that case then becomes accessible by any other users connected to your system via the web client portals.
- All of these case management programs also have a way of securely sharing documents with your clients electronically without using email. You can give your clients their own unique log in and a password. They can come to your website, click on a link, and access whatever content you have shared with them.
Practitioners who have not adapted these technologies do not need to wait for the “new normal” to come but rather can begin the process of adapting these technologies immediately even in a remote, work-at-home, environment. Considering that no one can predict the duration of the Covid issues, how long stay-at-home orders might last or be reinstated, whether there will be a resurgence, etc., starting the process of improving remote access and increasing electronic storage should begin now.
Transfer of Documents to Clients and Client Access to Documents.
If you prepare a draft of a will for a client, how do you get that document, and others, to the client in the current environment? An option for secure communication and transfer of files to clients, programs such as Citrix Sharefile, DropBox, etc. allow you to establish “portals” for clients. The program allows you to create and share folders with clients which clients can access after setting up their own passwords. Your firm can establish a method to upload documents to specific client folders that you wish for them to have access to. There are also settings in the program to allow clients to upload documents- providing the practitioner with the ability to give clients a method to securely send documents requested by the practitioner. There are additional services these kinds of programs can offer, depending on the plan purchased by the firm. For example, email encryption, which every lawyer need can be sent through the ShareFile system. Some programs may even offer a document assembly system.
Most, if not all, of these programs can offer phone and tablet apps to access documents that were shared. As an example, if a client is rushed on an emergency basis to a hospital, he or she can download his or her health proxy, living will, or any document wanted, from a smartphone if the firm has create a “portal” for them and uploaded those documents for client access. If a client wants to share with documents with other professionals on the team, such as a financial advisor, all the client has to do is share the link to the share files and give the password to that person. Many of these programs allow shared access to clients and service providers alike. Access would be customizable by the practitioner. This kind of service can be seen as a “value add” by clients and help as a reason to update their documents and allow you to create additional safeguards for them.
Lastly, it is important to remind clients of the resources available to them as a means to help them during this difficult time. Encourage them to print out a photocopy of health-related documents. In the event they get taken to a hospital, they have with them in hard copy the documents they need, which can speed up the process.
Just as with document management systems above, even if your firm has not adopted these remote file sharing services, or if you have but attorneys themselves are not familiar with their use, this can and should be addressed now. Your firm should not wait for some future return to a “new normal” to implement improvements now.
Bringing the Office to your Home
A whole generation of lawyers is somewhat or completely reliant upon support staff. When the practitioner is required to shelter in place and locked out of their office, it will not be as easy to coordinate with that staff. And, as noted above, no one can predict whether there will be a resurgence of Covid and a return to shelter in place orders. So, the need to make attorneys more technologically independent of support staff is important to address now. However, with a document assembly platform, even practitioners that are terrible typists, and may not be the most tech savvy, will still be able to draft highly evolved, perfectly formatted documents without administrative help. While there may be some investment time in order for a practitioner to learn the firm’s document assembly method of choice, once all of the issues have been resolved it is liberating to be free from relying solely on the firm’s administrative team. It is part of a disaster recovery plan because then your firm becomes more self-reliant. There are several options for document assembly that a firm can choose:
- The least expensive option is to use the features contained within your word processor programs to automate form documents that have been created by the firm. This approach can be useful for simple documents, such as letters, affidavits, “Crummey” notices, etc. For example, Microsoft Word has several features that can be used for automation including AutoText, macros, mail merge, and content controls. While this style of document assembly may be the least investment in both time and cost, it would require the firm to continuously update its own forms to reflect changes in the law, or additions to the documents themselves. This may be useful for a static document you do not expect to change often, but would not be as effective for more complicated documents such as wills, powers of attorney, trusts, etc.
- Document Automation Software is a tool you can use to automate documents that you already use. Examples include: HotDocs, TheFormTool, Pathagoras, Xpressdox, ActiveDocs, Contract Express. Document assembly platforms offer significantly more advanced functionality than Word or WordPerfect provide natively. However, these are just tools you can use to automate your own documents and they do not include pre-automated forms of any kind. Because of their power, it takes an investment of time to learn how to use them. However, there are many consulting firms to which you could out-source the automation of your documents. Finally, with this approach you will be responsible for updating your documents for changes in the law.
- Subscription drafting systems automate document generation, but they include the documents that you will use. That is, you use the forms developed by the subscription service rather than the documents that you developed. This may be the costliest document assembly option over time, and would necessitate no longer using firm crafted forms, which may deter some firms who have spent significant time developing those forms. Having a subscription service will allow a practitioner to have forms that constantly update for changes in their state’s specific laws without having to research and update those forms, saving administrative time. When new concepts in estate planning are developed, the practitioner can avoid having to update the forms to implement those concepts, saving time “tinkering.” Based upon the subscription the practitioner purchases, it will include specific forms, such as for specialized trusts (GRATs, DAPTs, SLATs, SPATs, etc.) that would be difficult for a practitioner to create based upon one firm trust form, or administratively unwieldy if the firm attempted to maintain and update a dozen different trust forms of their own. Some of the companies that provide these services include:
- Interactive Legal.
- Wealth Transfer Planning.
- Practical Planning System.
- Lawyers with Purpose.
- Fore Trust Software.
For firms that have always updated their own language and prefer their language over that provided by subscription services, a subscription service is not the best or most robust option and is often viewed as patently unattractive. Some believe that the reality is that updates are easy/inexpensive; and the law does not change that often which would require updates in the first place. Others hold the opposite view. Namely, that the cost in terms of attorney time and tech support to update and maintain a data base of proprietary document sis cost-prohibitive and that few if any firms can create the wide array of complex forms to address the myriad of different client scenarios that might be seen. If your firm has not created and maintained an adequate library of proprietary forms, perhaps now is the time to begin the process of exploring document generation software on a subscription basis and being implementing it to assure that the attorneys have traveled far down the learning curve should the professional face a crush of work near year end because of election concerns over changes in estate tax laws.
Communicating with your staff is very important to keeping staff productive and on track. Microsoft Teams is one very simple method that allows instant messaging via its chat feature, calls, and conferences. You can set up teams and team meetings that readily keep you connected with other attorneys and staff at your office.
Hosted VoIP phone systems are another asset for practice portability. The practitioner can use an internet connection to use their phone system from anywhere in the world. With a laptop, a headset, and an internet connection, you can have a robust phone system. You can transfer calls to other firm members. The firm does not need expensive onsite phone systems anymore. If the physical office closes for any reason, the practitioner will still be operational. These phone systems typically have a flat fee per month and offer unlimited calling.
Even printing and scanning has become more portable, with many hardware options on the market. When a practitioner wants to create a mobile estate planning office and go to wherever their clients are, there are many ancillary hardware products available for surprisingly low prices such as portable scanners, printers, and copiers. But the real answer is limit printing to only those documents that absolutely must be printed and scan any paper documents as soon as received. These practices will be helpful to implement now as they will facilitate a more efficient workflow during a work at home environment. Remember, even if firms resume working in their offices, there may be shifts or other arrangements to minimize the number of people physically in the office at one time. Take proactive steps now.
Digital signature platforms can be used to help further the goal to execute documents with without face-to-face meetings, as required in this era of social distancing. Most documents other than Wills can be executed in this manner, including all administrative documents such as retainer agreements, etc. There are software packages such as RightSignature and DocuSign, which allow you and/or your clients to validly execute documents electronically without an in-person meeting.
When circumstances require cancellation of in-person meetings, there are options for practitioners to continue to meet with and assist their clients. One can use applications such as GoToMeeting, Zoom, Webex, etc. to meet with clients remotely. Many businesses use remote meetings as part of their standard business process. For later adopters, it may require a bit of a mindset shift for firms and/or their clients. However, the right technology can help absorb impact and keep business rolling during closures. Keep in mind that while videoconferencing is great, we have long used telephone conferences without video. Videoconferencing should be used when an in-person meeting would otherwise be typical, but telephone conferences remain appropriate and help avoid “GoTo or Zoom Fatigue”.
Timely to the COVID-19 circumstances at hand, the company that offers GoToMeeting and GoToWebinar is enabling and making their services available to impacted regions, as well as clients, for a period of 90 days free of charge. Additionally, Microsoft has made Teams available at no charge for a period of time.
If you are already using an application for web meetings, and need to add additional “seats” or licenses for additional staff to work from home, contact your representative at that company. They may be able to offer a mitigated plan to assist you. These adaptations are relatively easy to implement and are not cost-prohibitive. Within a very short period of time, a firm can get their office back up and running in a remote paradigm.
Beyond the current crisis, adding these digital solutions affords flexibility to your firm and the clients you serve. Adopting these practices can be a valuable tool to show clients the myriad of ways you can assist them and bring in additional clients as the world in general adopts these technological changes.
Speech to text software, such as Dragon, can also be very useful and is an added tool to fill the gap when a practitioner cannot access support staff readily. There are incredible advantages to what technology offers practitioners to practice remotely, and clients can benefit significantly from the firm adopting these practices as well.
Document Signing in the Era of Social Distancing
The matter of social distancing is going to change the way practitioners engage with clients until the world resumes normal operation. You are likely to encounter a situation where meeting with the client, a nursing home patient for example, is simply not possible now. With regard to document signing, fortunately, most documents in most jurisdictions can be signed separately in counterparts, and without witnesses. However, traditionally there are witnesses to a will, and the signing of a will is governed by each state’s statute. If you are signing a trust, in most jurisdictions you do not need witnesses.
A small number of states have adopted the Uniform Electronic Wills Act, which provides that things can be signed remotely in some circumstances. For states where this is not possible yet, there may be some workarounds via home printing and/or mail and messenger delivery services. The question of what constitutes an in-presence witness will need to be addressed. For example, does physical presence mean being in the same room, or will observance by a video call, in which the witnesses can see the client sign, through Zoom or another platform suffice? If a state has not adopted the Uniform Electronic Wills Act, the practitioner needs to review the statutes in their state carefully to determine what they feel comfortable completing based upon the wording of that statute.
One suggestion, particularly in the current climate, is to host a ZOOM video conference call that is recorded, which would preserve proof of event of signature and witness. The client signing and initialing a document can hold each page up to the camera as proof of that having taken place. Then, the client can take the document, all while on camera, and put it in a FedEx envelope sent to either the practitioner or anywhere else it is required to be sent for signature and seal it. This can be likened to a “chain of custody” for evidence in a criminal case, showing at all times where the document is as it is being signed. The same process can be done for any process requiring a physical presence.
If there is ever an issue raised whether the client signed the right document or initialed in the right place, you have the video recording of everything that can be saved forever as proof of completion.
Conducting any kind of signature event may be a challenge with those clients who are completely isolated, such as elderly or convalescent patients. The practitioner may need some of the care staff to help you facilitate a virtual signing event. Also consider traveling to the care facility and conduct a signing meeting being on opposite sides of an indoor and outdoor window for the meeting, if possible. It is important to consider solutions for how to manage documents like a trust or a will, which requires everyone to sign the same document in the presence of the witness. The complexities and workaround options will vary from document to document and state to state. Some documents are more amenable to video signing events than others.
One of the things that this crisis has brought to the allied profession’s attention is that we need the law to catch up with the technology. Only a handful of states have adopted the Uniform Electronics Will Act, while others require physical presence line of sight for the witnesses of a will to be valid. The good news for those of you who are in a uniform probate code jurisdiction, the statement that it must be in the physical presence of the testator and witnesses has been removed. It would need to be explored how Skype or ZOOM virtual meetings could employed in that case.
In some of these cases, the law is slowly moving towards alternate means of execution, witnessing and notarization of wills. The COV-19 tragedy makes the need for remote electronic witnessing, motivation, signing, and execution of wills and other documents absolutely critical for our safety and that of our clients. The technology is there. Practitioners should be making a call for action in each of our respective states to the appropriate legislators. Encourage them to enact legislation that will enable us to help clients.
The COVID-19 tragedy has created an acceleration in the adaptation of technology by firms to help keep their businesses going in these difficult times. The programs and concepts discussed above are a small sample size of the myriad of products and potential applications that the modern estate planning firm can employ to practice more effectively and profitably, both during the crisis and once it is concluded.
Practitioners should be thoughtful when employing new technology in their practices. While adaptation may be needed, the technologies should still be used in a manner that complements the way the practitioner currently practices, rather than completely changing the firm’s methods.
Employing new technology, communicating with clients, and educating those clients as to the ways in which practitioners can still service them even if a face to face meeting is not feasible in these times will be key to a firm’s ability to navigate the challenges we all currently face.