Avvo 1-on-1: The risks of not having a will during the COVID-19 pandemic

Wills & estate planning

Avvo 1-on-1 is a new Avvo question-and-answer article series featuring candid interviews with attorneys in various specific fields of law.  The goal of this series is to humanize intimidating law topics for the everyday person through stories, anecdotes, and other real-life experiences shared by attorneys.   


Our next installment features Betsy Simmons Hannibal, J.D.


Hannibal specializes in estate planning. She writes for Nolo.com, edits many Nolo books, and is the managing editor of Nolo’s Quicken WillMaker & Trust. Before joining Nolo, she trained at two private law firms as well as the San Francisco Superior Court and the Federal District Court of Northern California. Hannibal is a graduate of the Honors Lawyering Program at Golden Gate University School of Law, where she served as the research editor of the law review.


Have you seen a boost in interest around estate planning since the pandemic began?


Absolutely. We’ve seen a considerable uptick in the number of people interested in estate planning products. The coronavirus seems to have encouraged people to consider end-of-life plans – either for themselves or for loved ones.  


What are some of the most frequently asked questions spurred by the pandemic?


As before the pandemic, people want to know the difference between a will and a trust, and they want to know which one they need. But in the past few months, we’re seeing more than the usual number of inquiries about powers of attorney and health care directives. This makes sense because people see the effect of their friends and loved ones going into the hospital and not coming out for weeks. During that time, someone has to manage that person’s financial affairs and perhaps make health care decisions on their behalf. Powers of attorney give another person the legal authority to do both of those things and if the hospitalized person needs to be sedated or is otherwise unconscious, a living will can provide clarity about that person’s health care wishes. For example, how long they want to be connected to a ventilator if there is very little chance of survival. 


Do you think this pandemic will change the public’s outlook on wills and estate planning?


It seems likely that the pandemic has brought estate planning more to the forefront of people’s minds. This is a good thing because everyone should have a plan for the unexpected, even when death is not imminent.  


Also, COVID has forced many of us to consider what kind of treatments we would want, or not want, if we were in a coma or otherwise incapacitated. This has resulted in an increased awareness of an interest in health care directives – particularly, powers of attorney for health care, living wills, and POLST forms. 


These are certainly unprecedented times. Do you know of a similar situation that has caused such an increase of interest regarding wills and estate planning? 


These are undoubtedly unprecedented times and for estate planning, what feels really different is that the pandemic has caused us all to take a look at our end-of-life wishes at the same time. Previously, people often became interested in estate planning following a specific individual event, like the illness or death of a loved one. In contrast, we are now all experiencing the effects of COVID-19 at the same time. This gives us a shared awareness of illness and death, and it impresses upon us the importance of estate planning. 


What can a family expect if their loved one passes away without leaving behind a will? How are their loved ones’ possessions split amongst the family?


When a person dies without a will, state law determines who gets that person’s property. This varies a little depending on the state, but generally, you can expect a spouse or children to get everything. If there is a spouse and children, everything will be divided among the spouse and children according to a statutory formula. If there is no spouse or children, everything goes to the next level of heirs – usually parents and/or siblings. If there are none of those, everything goes to the next level of heirs – often cousins or aunts/uncles. And so on, with more and more distant relatives. 


However, keep in mind that “everything” includes only the property that would have passed through a will. If the person had a living trust, retirement accounts, transfer-on-death deeds, or other non-probate assets, then the property controlled by those arrangements will go to the beneficiaries named in those documents or on those accounts. 


Why do you think only 30% of American’s have an estate plan?


Making a will takes time and money, and most of us don’t have enough of either. If you find good DIY materials, you can make a will yourself without hiring a lawyer, though you will have to put some work into figuring out exactly what you need (a will, a trust, a transfer-on-death deed?).  


However, what keeps most people from making a will is probably less practical than time or money. It’s uncomfortable to think about our own deaths. We don’t want to think about how it will be for our loved ones when we die. And when death does not feel imminent, we don’t get any immediate gratification for taking the time and spending the money to plan for the unexpected.  


To counter these less tangible hurdles, trying thinking about estate planning as a gift—not some onerous task that you need to do to maintain your life, like cleaning the gutters or getting a colonoscopy. Instead, think of it as a gift that you’re preparing for your loved ones. After all, you yourself are not likely to benefit from your plans. But for your family and friends, it will be a huge relief gift to know:


  • Who should make financial or medical decisions for you if you cannot make them for yourself
  • Whether you want to be an organ donor
  • What you want done with your body after you die
  • What kind of funeral or memorial service you want
  • Who should care for your young children if their other parent is unavailable
  • Who should get your property
  • Whether you have life insurance, and
  • That you did everything you could to plan ahead.


Taking a hard look at these issues is not easy, but it may be easier to face them if you remember that you’re doing it for the people you love. 


What are some of the easiest ways to form a will?


The easiest way to form a will is to have an attorney do it for you. Now that many attorneys are working remotely, you may not even need to leave your house to hire an attorney to make a will for you.  


However, hiring an attorney is not an option for everyone, perhaps because of expense or urgency. In those cases, the easiest way to make a will is online or using software like Nolo’s Quicken WillMaker & Trust.


What is the difference between forming a will through a lawyer or forming one using a software program, like WillMaker?


Using do-it-yourself products doesn’t replace the personalized treatment you get from hiring a lawyer. In most cases, having a DIY will is better than not having a will at all. This is especially true if there is a specific reason you want one, like if you want certain items to go to specific beneficiaries or you want to name guardians for your minor children. You can make a DIY will in less than an hour. Then you find two witnesses, you all sign it, and it’s done. 


What advice would you give to those above the age of 40 who are without a will?


For those over forty …it’s time to make a will. 


That said, most people need a will, regardless of age or life situation. If we don’t make a will—or some other more complicated plan—state law determines who gets everything we own. Usually, this means that everything goes to our closest relatives, as defined by the law. 


Are wills and estates typically taxed, if so at what rate? 


For most people, estate and inheritance taxes are not an issue. They do exist, but there are exemptions for most estates. An individual’s estate must pay federal estate tax only if the estate’s value is over $11.58 million (for deaths in 2020). And the estate of a married couple doesn’t need to pay estate tax unless its value is over $23.16 million. So, the estates of most people don’t pay federal estate taxes. 


That said, a handful of states also have estate and inheritance taxes. In most of these states, the exemption rates for estate tax are also very high. Or, in the case of inheritance taxes, close relatives are exempt from the tax. There are a few exceptions — for example, Massachusetts, Oregon, Vermont, Washington. These states have somewhat lower exemptions – but still $1-2 million. Your best bet is to find out if your state has an estate or inheritance tax and then learn whether your estate would be liable. In most cases, you won’t need to worry.