In a recent executive order, Governor Bill Lee allowed witnesses to remotely sign some legal documents while Tennessee is under a state of emergency due to COVID-19. Estate attorneys were one group pushing for this action. Across Knox County and East Tennessee, attorneys have seen a spike in clients seeking estate and end-of-life planning services. But social distancing guidelines have complicated things.
Bill Fix is an independent lawyer in Knoxville. While his calls about family law have gone down, he estimated he’s seen a 30% increase in calls about estate planning. He says for some, its the extra time they have that has pushed them to pick up the phone.
“I have had some that reached out and said, 'I’ve been staying at home every day for the last several weeks and this is something I’ve been thinking about,'” Fix said. “For some people, it’s been the motivator to get a will in place and power of attorney and things like that.”
If someone dies without a will, Tennessee’s intestacy laws will determine what happens and who gets a person’s assets. But the state’s laws may not fit everyone’s wishes.
“The bottom line is everyone is going to pass away at some point due to something, whether it’s an accident of natural causes or a pandemic,” Fix said. “You want to make sure things are done how you want.”
Another attorney, Donald Farinato, specializes in estate planning at a larger firm in Knoxville. He said at least 90% of the calls he gets mention the coronavirus, both from existing clients and new clients. He broke down what’s on his client’s minds during this unpredictable time. This conversation has been edited and condensed for clarity.
HEDDLES: Intestacy laws vary greatly state by state. Can you break down what Tennessee’s laws are and why someone might come to an attorney to address those differently?
FARINATO: The old saying goes, “If a person does not get a will done, the state of Tennessee will do it for you.” The laws of intestacy first look to see if there was a spouse. If there was only a spouse, the entire estate will go to him or her assuming there are no descendants. If there are children or grandchildren or beyond, the laws of intestacy will also include them. If you have someone die who has a spouse and children, the estate will be shared between those folks.
If, by chance, the person who dies does not have a spouse or any descendants the laws of intestacy look to that person’s parents and stops there if at least one parent is alive. If there are no parents, it looks to siblings of the descendant. If there are no siblings, the descendants of the siblings. And if there’s no one there, it takes one last trip up to the grandparents and sees if there are any descendants of the grandparents.
But it doesn’t go any further and it’s interesting to note that Tennessee’s laws of intestacy are not as extensive as some states. It’s possible to have kin that is too remote to be an intestate heir, so the assets can turn over to the state of Tennessee, which is usually something folks don’t want.
Is there anything else that makes Tennessee distinct from other states?
Generally speaking, Tennessee requires compliance with the statues that require the execution of wills. Some states have relaxed rules, but Tennessee isn’t one of them so it’s important to exercise formalities. Having said that, the Governor recently signed Executive Order 26. As of April 9, and up to May 18, there’s going to be a slight relaxation of the rules governing the execution of wills. They still have to be observed for the most part, but Tennessee and other states are trying to respond to the situation we’re in and give some other tools to get these documents executed.
What do you see as the most important things to address in end-of-life planning?
There are two components to that. The first component is the healthcare part of it - to make sure if you have any wishes regarding end-of-life treatment in a living will or power of attorney. A power of attorney is an advocate for the person. Tennessee law allows a living will to be delivered to primary care physicians or doctors ahead of time to makes sure they understand the patients’ wishes.
On the property side, you want to make sure your affairs are in order. As far as assets go, it’s a good idea to make sure everything is titled properly. For example, if a dad wants to give everything equally to his daughters, he would want to make sure the accounts aren’t joint with just one of the daughters. It’s a good idea to name a power of attorney for property.
The most difficult calls I get are when the dad or mom is not capable to sign. That’s always heartbreaking to see, so planning ahead to the extent possible is the best thing to do.
A lot of people are in financially precarious positions and don’t have the money, what are the most basic things someone can do for their peace of mind?
There is one document that’s available directly from the state of Tennessee. It’s called the Advanced Directive for Healthcare. It is intended to be a document that allows others to make healthcare decisions for them and make wishes for treatment. That’s available, and the statute was changed many years ago to allow those to be executed with two witnesses or a notary public. That can make them easier to execute. That’s a document that’s there and free to everyone if they need it.
There’s also something called a POST form that should be executed with a medical professional only. It is the successor to the former DNR, or “Do Not Resuscitate” forms. This is something that the patient can talk to a doctor about when making medical decisions.
There’s one side of the coin of people that want to take care of themselves and their loved ones. And then there’s the other side of the coin of people that want to take advantage of a horrible situation. What sort of extra precautions have you had to take?
It’s always a good thing to be able to work with folks on their estate planning documents that are working together and have a common goal. It’s much more difficult with someone that has nefarious intentions. When you have in-person signings and meetings, it is easier to watch for body language and signs. It’s much tougher when you’re remote. It is something we’re still struggling with. We want to help people effectuate their estate plan, but certainly do not want to be a part of something that is not proper. A compressed time frame and not being able to meet face-to-face has made that difficult.