Perhaps you are waiting to sign your will. You might be thinking that you should be able to sign an electronic will. Maybe you want to hold off until then. Well, you will only have another year to wait.
What is an electronic will?
So what is the big deal, anyway? Can’t you sign your will electronically right now? After all, you can buy a house, manage your financial accounts, and even hire a dentist, doctor, lawyer or other professional with a digital signature. Why wouldn’t you be able to sign your will the same way?
Because the law doesn’t permit it. Your will has to be signed, and “signed” for these purposes means paper, pen, pencil — all the traditional accoutrements implied by the notion of a signature. That has long been true everywhere in the U.S. — except, as it turns out, two other states. Nevada has long had a law permitting digital signatures on a will (though no one seems to have used the law). Indiana adopted its electronic will law last year.
Why would you want to sign an electronic will? Because you could. Because you like keeping all your files as electronic versions. Maybe because you want to be a trailblazer. Or perhaps you just want to save trees.
Now Arizona joins the ranks of states recognizing signatures on an electronic will. The legislature passed, and our governor signed, House Bill 2656. It specifically permits digital signatures on an electronic will that has never been reduced to a paper or printed version.
Set your stylus down — for now
The first thing to know about the new law is that it is not immediately effective. In fact, it will not become effective when most other laws do, in early August. It specifically says that it is not effective until June 30, 2019.
In the meantime, you will still need to sign your will in the traditional manner. You should not delay, and certainly not for a full year, just to be a pioneer. Besides, if you really want, you can sign a new will digitally next year.
Actually, that’s not quite correct. If you are really eager to sign an electronic will right away, you should be able to take advantage of Indiana’s or Nevada’s law. Can you do that while sitting in your Tucson living room? Perhaps, but we’ll see as the law develops. As we are Tucson elder law attorneys, we won’t even imagine whether you could do the same thing while sitting in Tampa, Florida (or even Sacramento, California). You get our point: state laws may vary.
How will you sign your will?
Once the effective date has arrived, signing a digital will should be straightforward. At least, the concept and execution should be familiar. You’ll be able to look at an electronic version of your will and sign on a tablet or touch screen using that stylus. Or you should be able to click on keyboard choices.
The concept of “signature” will be different. Rather than focusing on your handwriting and proof of your physical presence, it will focus on the electronic representation — and proof of your physical presence.
You may already know that Arizona permits you to sign a will without witnesses, provided that it is in your own handwriting. Such a will is called “holographic,” and will be recognized in many states. In fact, your Arizona holographic will should be recognized in every state, since they are permitted for people in Arizona. “Should be” but might not be — at least one state would invalidate your Arizona holographic will if you later moved into that state. But that’s a topic for another day.
Arizona’s new law will not allow a holographic electronic will. In other words, you’ll need to print it out and sign it if you want to avoid witnesses. Writing it on your tablet with a stylus and signing it will (probably) not count.
Witnesses and notarization
One key item in Arizona’s new electronic will statute: you still need two witnesses, and they need to be present when you sign. Well, that’s not completely true — they can be present when you affirm that you have signed. But physical presence is key.
Many people think that your paper will needs to be notarized. It does not (though it may be easier to introduce in probate court if it has been). The rule will be the same for an electronic will. There is, however, a mechanism for adding notarization.
Arizona does not yet explicitly permit a notary public to act remotely. In other words, the notary must be physically present to see the signatures — whether electronic or by pen on paper. That might change in the next year or so, but for the moment that will mean that an electronic will normally will need the signer, the two witnesses and the notary to all be together at the same time.
That’s a bit of an oversimplification. It actually will be possible for the will’s signer to have one notary, and each witness have different notaries. That will be confusing, though, and so electronic wills should ordinarily be signed with all four participants together in person.
Does that mean this is all a lot of words about nothing?
Frankly, it might be. We’ll see how much demand builds up for electronic wills. We also may see changes to the new process even before it becomes effective.
None of that even deals with the problem of storage of an electronic will. Nor have we (yet) discussed filing of a digital document with a paper-based probate court. We also haven’t reviewed how the new electronic will law affects trusts, or powers of attorney.
So many questions, and so few answers. But Arizona is taking a small step toward recognition of modern digital realities.