My Loved One is in the Hospital and has No Will

The hospital is on lock-down. My loved one has COVID-19. Doctors say he won’t survive. There’s no will. What’s going to happen? How is the burial paid? How do we pay his debts? How does his spouse afford to live? What if she enters a nursing home? Will his assets be protected? What will be his legacy?

In better times an attorney might work at the patient’s bedside to ascertain his final desires. The attorney could draft the will at his office, review it with the client, and then return to the patient’s bedside with witnesses and a notary public stamp for a brief signing ceremony.

This assumes the client still has capacity and he is not under undue influence or duress.

As of right now video conferences won’t be enough for witnessing signatures or notarization – in our office. Although the legislature has just passed a temporary measure that allows for notarization by video conference, these ordinarily must be done in-person under Massachusetts law. For wills, I don’t agree with the way this temporary measure is written. Concerns about capacity and undue influence remain. I have always strived to help my clients and their families avoid infighting and court battles over the family legacy. This remains a valuable service I provide. Also, the temporary law wants to allow wills witnessed by video to be valid – and they may be, but they may not be. A will really should also be “self-proved”. I am rather certain this temporary law does not address that portion of the wills statute. We can discuss this further over a video chat, but for now I’d say your loved one needs a conservatorship.

A petition for conservatorship may be needed to manage his finances, create a trust, fund the trust, or even create a will through the order of a probate court judge.

Although Massachusetts courts are extremely limited in the number and types of cases heard during the pandemic, the courts are still hearing motions for temporary conservatorships. It may not be in-person. It may over the phone, but there can still be a hearing.

This process can be difficult with a lot of work on the backend. The signed assents of all the heirs at law will be needed. Demonstrating some proof of your loved one’s desires will be the best practice, too.

If your family needs to help a loved one solve this problem, then contact me here. We’re happy to help.

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