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Electronic Wills: Technology Collides with Trusts and Estates Law

The last 100 years have brought vast technological advancements to the masses, including the computer, internet, and smartphone.  These developments have changed the way we live our lives and the way we conduct business.  Instead of calling the receptionist of a company and asking for directions, we simply navigate using our car’s computer system or an app.  Instead of mailing documents, we send them via email.  Technology is now colliding with trusts and estates law through the use of electronic wills.  Let’s take a look at what these are, along with how states are beginning to deal with them.

What is an electronic will?

A last will and testament, or will, is a document that gives instructions upon one’s death:  how property should be distributed, who should be in charge of distributing the property, who shall serve as guardians for minor children, instructions on the disposition of remains, and more.  For a will to be valid, certain formalities must be followed.  State laws govern rules about signatures, witnesses, and notaries.  Is a holographic will acceptable; must all pages be numbered and initialed; does the will need to be recorded?  These formalities protect the testator by only allowing valid wills to be admitted to probate and by alerting the testator to the gravity of the decisions through the complexity of the formalities. 

Electronic wills are wills that are signed, written, or notarized electronically.   If a holographic will is acceptable in a certain jurisdiction, how about a will that is typed?  This is often referred to as an offline will.  It is typed and signed by the testator on an electronic device and stored on the device’s hard drive.  An online will brings in another private actor – such as a will posted to Facebook – which is stored on that other actor’s server (or in the cloud) and can provide information such as a time stamp or authentication of an account. A custodial electronic will is created when a company that is deemed to be a qualified custodian creates, executes, and stores the will in conjunction with the testator.  These companies are controlled by state laws and regulations.

How are states approaching electronic wills?

Courts have dealt with unconventional wills in recent years.  A will typed on a phone was ruled as valid. In another case, a computer generated signature was deemed valid. Technology, by virtue of our current societal landscape, has drifted into trusts and estates law.  Some states are putting statutes in place, to address the changing times.

Florida – The Most Recent

Florida has recently enacted HB 409.  Governor Rick Scott had vetoed a similar bill in 2017, but the recent legislation survived the legislative process.  As of January 1, 2020, Floridians can notarize documents, such as a will or a power of attorney, electronically.  The statute specifies the requirements and standards of online notarizations.  The statute was amended to redefine, among other things, “in the presence of” a notary: 

117.201 Definitions.—As used in this part, the term:

(1) "Appear before," "before," or "in the presence of" mean:

(a) In the physical presence of another person; or

(b) Outside of the physical presence of another person, but able to see, hear, and communicate with the person by means of audio-video communication technology.

(2) "Audio-video communication technology" means technology in compliance with applicable law which enables real time, two-way communication using electronic means in which participants are able to see, hear, and communicate with one another.

An electronic notarization will no longer have an official seal and a different form of signature will be used.  Other states that authorize the use of electronic notarization on certain documents include Alabama, Colorado, Connecticut, Delaware, Georgia, Illinois, Iowa, Kansas, Minnesota, Nevada, North Carolina, North Dakota, Pennsylvania, South Dakota, Texas, Utah, Virginia, Washington, and West Virginia.

Nevada –  The First

Nevada became the first state to authorize electronic wills some 17 years ago.  Codified in NRS 133.085, “Every person of sound mind over the age of 18 years may, by last electronic will, dispose of all of his or her estate, real and personal...”  Like Florida, Nevada law requires the use of audio-video communications for electronically notarizing the document. 

The statute defines an electronic will as the following:

  1. An electronic will is a will of a testator that:

    (a) Is created and maintained in an electronic record; and
    (b) Contains the date and the electronic signature of the testator and which includes, without limitation, at least one of the following:
    1. An authentication characteristic of the testator;
    2. The electronic signature and electronic seal of an electronic notary public, placed thereon in the presence of the testator and in whose presence the testator placed his or her electronic signature thereon; or
    3. The electronic signatures of two or more attesting witnesses, placed thereon in the presence of the testator and in whose presence the testator placed his or her electronic signature thereon.

“Authentication characteristic” is further defined in the statute:  Such a characteristic may consist of a fingerprint, a retinal scan, voice recognition, facial recognition, video recording, a digitized signature or other commercially reasonable authentication using a unique characteristic of the person.

In addition, there must be only one authoritative copy maintained and controlled by the testator or their custodian.  In the age of copy/paste and keeping multiple copies of documents in various places on your plethora of electronic devices, this might seem difficult for the testator to do.  Should they email copies to loved ones?  What if they keep a copy on the hard drive of their laptop but also have a copy stored on their phone?  There is also a requirement that any attempted alteration of the authoritative copy be readily discernable.  To keep this confusion to a minimum, many testators might find it best to keep the authoritative copy with an attorney or other professional custodian.

Uniform Law Commission – A Guide for All

Since 2017, the Electronic Wills Committee of the Uniform Law Commission has been convening to draft a uniform act addressing the formation and validity of electronic wills.  They also strive to ensure the resulting act will address appropriate safeguards to prevent fraud and document corruption, while ensuring the integrity of the intent of the documents.  The Commission’s goal is to have a uniform way of dealing with electronic wills across the United States, so that potential litigation may be mitigated.  What if someone creates an electronic will in Nevada and moves to another non-electronic will state?  Is the electronic will still valid?  With uniform laws in place, confusion and mistakes may be less likely.  However, uniform codes are not usually enacted in their entirety by states.  Like the Uniform Trust Code, states often alter the language before enacting the code.  But still, many may see the value in substantially similar language or concepts across the board. 

Conclusion

Many of those who oppose moving towards electronic wills are steeped in the rich history of formalities, and find comfort in the integrity of the document that those formalities provide.  If electronic wills become the norm, we may have to go through some pitfalls that statutes might not address.  How do you revoke an electronic will?  What happens if I accidentally delete the authoritative copy? In addition, many practitioners worry that electronic wills may bring about a host of DIY wills, where the testator’s intent is ultimately not carried out.  Trusts and estates knowledge can be tedious and an electronic will drafted by a non-professional may bring about headaches for the family at a later date. Finally, many worry that electronic wills may subject seniors to fraud.  How can you tell that a malevolent family member is not in the room with the senior, out of site of the camera, unduly influencing the senior?

For those that look forward to electronic wills, they cite the ease of such preparation and execution.  In the world as we know it, with technology influencing virtually every industry, some find it to be an inevitable and welcome change.  Whatever side of the fence you are on, electronic wills statutes are slowing presenting themselves in the legislative processes of various states in the Union.  In addition to Florida and Nevada, Indiana has a statute authorizing an electronic will.  Arizona’s electronic will statute becomes effective July 1, 2019.  Who will be next? 

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