Discover the quickly changing landscape of e-wills and learn if your state allows them.
Electronic wills or e-wills are wills that are created and stored in electronic from. An e-will is electronically signed, and in many cases can absolve with the conventional requirements for the will creator and witnesses to actually be present in the same location when signing.
As electronically signed documentation becomes widely recognized, state laws are starting to expect a future in which e-wills—presently uncommon—are recognized and accommodated. The following is a summary of how state laws presently treat e-wills.
Can an E- Will Satisfy the Requirements of a Conventional Will?
To comprehend e-will laws, it’s necessary first to comprehend the requirements encompassing a traditional will. For a traditional will to be genuine, the will creator is required to be an adult mentally sound, and the will is required to be:
created in writing (a lot of conventional wills are typed on a PC, printed out, and then signed in wet ink)
signed and dated by the will creator, and
signed by witnesses.
Just about all states necessitate two witnesses, and most necessitate that the witnesses be present to watch the will creator sign the will. 2 states, Colorado and North Dakota, also enable notarization as an option to witnesses (in these states, the will creator may sign in front of a notary, instead in front of witnesses).
“Self-Proving Affidavits”: Your Will Insurance
- Will creators can take additional, optional steps that is going to expedite the probate process and help safeguard their will from court disputes to its legitimacy. A “self-proving affidavit” is a simple statement by the witnesses that they saw the will creator sign the will, and that the will creator seemed of sound mind. The witnesses sign their affidavit in the presence of a notary. Afterwards, heirs have proof not only that the will creator signed the will, but that the witnesses thought the will creator was competent.
Let’s return to the three components of a traditional will, and see how an electronic will challenges these requirements:
- In writing. When a will is created and stored on a computer, tablet, or cell phone, is it made “in writing”?
- Signed and dated by the will creator. Are e-signatures going to be accepted as signatures?
- Signed by witnesses. What if the witnesses were watching the will creator sign the will by video conference but were not physically in the same location? When a notary public is used throughout a will execution—either in the two states that allow it as an alternative to witnessing, or as part of a often included self-proving affidavit—the question of notarization remotely also becomes relevant. Is a notary public required to be physically present?
Answers to these questions are not consistent, as you will see when looking into selected state laws, below.
In Which States are E-Wills Valid?
Many states have advanced to absolutely allow e-wills in their laws. The below states have passed their own e-wills laws:
- Nevada
- Indiana
- Arizona
- Florida
- Illinois
- Maryland
And some states have passed a standard law on e-wills referred to as the Uniform Electronic Wills Act or EUWA. More states are sure to take after, but presently these states are:
- Colorado
- Utah
- North Dakota
- Washington
State laws on e-wills—specifically among the first grouping of states (that did not pass the EUWA)—differ greatly. For instance, some states allow the witnessing of e-wills remotely, whereas others require witnesses to be present physically. Some states will not allow an e-will to be self-proving unless very precise, difficult-to-fulfill steps are taken concerning keeping the will with a qualified steward, whereas others are more flexible.
The State ofArizona
Arizona, in 2019, changed their wills laws to permit e-wills. Arizona also has the requirement that the will creator and witnesses to be present physically, in the same place, and the e-will is required to also include a copy of their government-issued ID. Likewise to Nevada, the e-will is allowed to be made self-proving only when it’s kept by a qualified steward. (Ariz. Rev. Stat. §§ 14-2518 to 2523.)
The Uniform Electronic Wills Act (UEWA) States
In 2019, the Uniform Laws Commission passed the Uniform Electronic Wills Act. In late 2020 and early 2021, Colorado, Utah, and North Dakota became the first states to pass versions of this standard law. Washington state ensued in early 2022.
More states are going to potentially adopt their own adaptations of the UEWA soon, so it’s beneficial to acknowledge the standard law’s take on e-wills. The UEWA has a requirement of an e-will to be “a record that is readable as text,” so for the time being it prohibits audio and video wills unless they get written-out and then signed by the will creator. The standard law is also intended to allow states to decide on their own whether to allow witnessing remotely, so states are likely to continue to differ on this point.
The UEWA permits e-wills to be made self-proving, however, only at the time the will gets signed. Noticeable absence are any regulations surrounding stewardship or storage of the e-will.
A Couple of State Courts Have Also Permitted E-Wills
- Even without instruction from state legislatures, a couple of state courts have permitted e-wills to be accepted to probate. For instance, as an Ohio man devised and signed his will on his tablet from his death bed, the court deemed it to be made “in writing.” In Michigan, right before her suicide, she used the Evernote app on her phone to provide detailed instructions on what should happen to her property. The Michigan court employed the “harmless error” belief—available in some states to justify small flaws when it’s obvious what the will creator intended—to accept the note as a will.
Witnessing Remotely: Temporarily Permitted in Some States Because of COVID-19
Throughout the COVID-19 pandemic—in which gave rise to situations that urgently called for witnessing remotely—many states briefly relaxed the witnessing provisions for wills as an emergency action. To find out if your state has done so, look into The American College of Trust and Estate Counsel’s list of emergency notarization and witnessing remotely rules. Since these authorizations are only brief, it’s important to check if a specific rule has expired.
Can I Create an Electronic Will Today?
Theoretically, it’s definitely possible to create an e-will today that is valid in the states aforementioned. But a few roadblocks prohibit e-wills becoming normal, even in the states that presently allow it. The requirements encompassing custodianship of the will—in states such as Nevada, Arizona, and Florida—are quite complex, and there’s a notable lack of providers that offer e-will storage that meets these requirements. Some have expressed concerns about what happens should an e-will storage facility shut down.
Others have argued for a lack of clarity surrounding what represents a revocation of an e-will, the possibility of fraudulent tampering with e-wills, and the possibility for unwarranted influence when witnesses are not present physically and are unable see what’s occurring off-screen.
Whereas many lawyers may be hesitant to rely on the new laws of creating e-wills as of today, it’s obvious that the laws have produced more doors for wills that get created by PC or witnessed remotely. In any case, the laws encompassing e-wills are fast evolving, and many think it’s just a matter of time before e-wills become normal.
Source:
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Jennie Lin, A. (2022, January 20). What is an electronic will? Nolo.com Retrieved November 16, 2022, from https://www.nolo.com/legal-encyclopedia/what-is-an-electronic-will.html
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