Electronic wills

Electronic Wills Still a New Idea Three Years Later

Electronic wills were all the rage in estate planning discussions in 2018 and 2019. In that two-year period, four states adopted new statutes allowing for digital or electronic signing of wills. In order, Nevada, Indiana, Arizona and Florida pushed technology and law forward.

After that first rush of interest, two important things happened to push the a concept. First, the Uniform Law Commission adopted a proposed law for states to consider. The ULC proposed its Uniform Electronic Wills Act late in 2019. At that point the first four states had just adopted their own laws.

Then, in early 2020, came a terrific motivating force: a worldwide pandemic. Clients everywhere were anxious to get their affairs in order. Lawyers in some states had begun working only through telephone and online meetings. Other lawyers had office hours, but few clients able to come in to sign their wills.

The Uniform Act has its moment

In the first year of pandemic closures and restrictions, four states quickly adopted the Uniform Electronic Wills Act. Utah, Colorado, North Dakota and Washington quickly adopted the Act, allowing their residents to sign wills electronically. Suddenly the number of states allowing digital signing of wills had doubled.

Since then, Maryland and Illinois have joined the digital fold. Several other states (including Alaska, California, Georgia, Idaho, Massachusetts, Minnesota, Ohio, Virginia, and the District of Columbia) have introduced legislation but not (yet) adopted it. Some of those have proposed the Uniform Act, but others have been one-off attempts.

There is definitely some momentum behind the electronic will concept. So does that mean that people can start signing their wills digitally? Well, yes — at least in some circumstances. But we think the concept is mostly not yet ready for prime time.

What’s wrong with electronic wills?

There are a number of problems with the current state of the law. Even in the nine states with effective laws (including Arizona), most people will want to avoid the new idea. Here are some of the problems to consider:

Variability in state laws

Say you’ve signed an electronic will in Nevada, and followed its rules. Then you move to Arizona. Will your will still be valid?

Probably. Arizona (like most states) says that if your will was valid when and where you signed it, Arizona probate courts will recognize it. But that might not be true in every state. And “probably” isn’t really good enough anyway.

The problem gets muddier if you signed your will electronically in one of the states that allows witnesses to be “present” online rather than in person. Arizona’s electronic will law doesn’t allow that. It’s likely that there could be a dispute about which state’s law applies to your will. And that could move the “probably” above into a “maybe.”

Meanwhile, some states might have specifically outlawed digital signing of wills — though that’s not completely clear, either. Some people point to Oregon, which changed its law to specifically exclude digital signatures from wills. Does that mean Oregon won’t recognize your will if it complies with Arizona law? Would you like your estate to be the first one to test the question? And remember: by definition, you won’t be around to see how it turns out.

Storage

Some state laws (like Arizona, Nevada, Florida and Indiana) require your electronic will to be stored with a “qualified custodian.” Well, that’s not quite true — but if you want your will easily admitted to probate you should probably leave it with a “qualified custodian” (as those laws describe the role). That creates another point of friction in use of the technology.

If you do decide to involve a qualified custodian, there aren’t very many options available. Virtually all will charge a fee — usually an annual charge — to maintain your will in their storage system. So that might make things more complicated, rather than simpler.

And if you move, or your will’s custodian goes out of business, or you want to amend, revoke or replace your will — you will need to deal with the custodian again. Possibly there will be additional costs, though the marketplace is far from settled at this point. So there’s a whole new level of uncertainty to deal with.

Special provisions

At least one of the electronic will states (Florida) adds another wrinkle to testing validity of your document. If you are older, or have any infirmity at all, Florida law just might invalidate your digital document — but you won’t know it until someone challenges it after your death.

On top of that, each state has taken a slightly different course with definitions and procedures. Will your electronic will be judged by the standards where and when you signed it, or by the law of the state where you live when you die? Most lawyers will say the answer should be the former. Many probate judges think the law they know and deal with is better.

Related documents

Your estate plan is more than just your will. You might have a living trust, or even an irrevocable trust. You almost certainly need to sign a power of attorney, and probably a separate health care power of attorney. Sometimes you will need to sign other, related, documents as well.

The problem: very few of those documents can be signed digitally. You will need to have much of your estate plan reduced to paper anyway, so your electronic will might not be that much of a technological breakthrough.

In fairness, this concept is also under review. The Uniform Law Commission is even now considering a separate law to permit digital signing of ancillary estate planning documents. But so far that law hasn’t been proposed, and no state can have adopted it. No state has taken their own run at the concepts while waiting. And the ULC’s “uniform” act will not be consistent with the law of the five states that went their own way with electronic wills. So we’re probably 2-5 years away from being able to sign the other estate planning documents you need.

Revocation

For about six centuries, Anglo-American legal systems have recognized that you can revoke your (paper) will by tearing it up. In fact, you can scribble on it, burn it, or even urinate on it to express your disapproval.

For most of that time, the law has developed a set of presumptions based on physical destruction. Did you have your paper will in your possession before you died? If so, and if we can’t find it, there’s a presumption that you tore it up or otherwise destroyed it — and your will is usually deemed to have been revoked.

But how do we interpret those six centuries of the law and apply it to electronic files? If you had your will on a flash drive and we can’t find it, do we presume that you intended to revoke it? What if there’s another copy on your desktop’s hard drive?

For that matter, what if you DID delete your will from your hard drive, intending to revoke it — but there’s a copy on your flash drive, or your laptop’s drive, or your sister’s computer, or your lawyers’? Of course, there’s no problem here if you wrote a new will (paper or electronic) and expressly revoked your old electronic will — but still, this is the sort of confusion that makes digital documents more uncertain.

The final analysis

Yes, electronic wills are permitted under Arizona law. We haven’t seen one yet — and we fully understand why. We HAVE seen one or two under other states’ laws — but only as publicity stunts. So don’t rely on the buzz about digital signing of wills. Preparing your will on your notebook or iPhone isn’t (YET) the way to go. It might never be, but it certainly won’t be for several years.

Though we do have to acknowledge that no one anticipated the quick adoption of the uniform law right after it was proposed. That sudden burst of interest was based on our pandemic times, and who knows what might happen (or change) in the next two years? Stay tuned.

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