In today’s world, especially after the pandemic, nearly all business functions offer an electronic alternative. In the past, all the meetings were in the offices, now, people feel more comfortable holding most of their meetings online. In most cases, they are faster to execute, less expensive, and easier to implement. So too, documents that are passed from office to office with little stickers indicating signature requirements have become online documents that can be signed electronically. But can the same be done with wills? can I do an electronic will, sign it, have it witnessed, and then have it pass the test of time? There have been many changes to the requirements for a will that have taken into account the ease of writing, signing, and storage. So, here’s everything you need to know about electronic wills.
What is an electronic will?
Electronic wills also known as e-wills are wills made and saved in digital format, simple as that. An e-will is signed electronically, and in a few instances can dispense with the conventional want for the desire maker and witnesses to be bodily gifts withinside the identical room whilst signing.
As you may imagine, this makes the procedure of estate planning much easier and more accessible. It has to be mentioned that despite the fact that the era for e-wills is now available, they’re now no longer legitimate in all 50 states. We’ll deal with each of those factors withinside the following sections.
What States Allows Electronic Wills?
In 2019, the Uniform Law Commission (a nonprofit organization that drafts model state legislation) passed the Electronic Will Act. This Act permits testators to execute an electronic will and allows probate courts to give an electronic will legal effect. The Uniform Electronic Transactions Act of 2000 states that “most documents that were traditionally printed on paper can be created, transferred, signed and recorded in an electronic format.” However, they make an exception for wills because they must be interpreted after a willmaker’s death. Under the Electronic Will Act, the willmaker’s electronic signature must be witnessed or notarized contemporaneously. States have the option to allow this to be done remotely. There are no mentions of rules describing custodianship and storage of an electronic will.
According to the Uniform Law Commission, enactment history includes:
- Enacted in Colorado
- Introduced in the District of Columbia
- Introduced in Georgia
- Introduced in Massachusetts
- Enacted in North Dakota
- Introduced in the US Virgin Islands
- Enacted in Utah
- Enacted in Washington
Outside of this process, in 2001, Nevada was the first to enact legislation permitting electronic wills. Indiana, Arizona, and Florida have also enacted similar laws as Illinois and Maryland.
Traditional Requirements for Last Will and Testament
Under established law, a will requires:
- The will maker to be an adult of sound mind.
- The will must be in writing.
- The willmaker must sign it.
- Two witnesses are necessary.
There are many good reasons for having these requirements:
- The courts use this information to determine whether a will is authentic.
- It’s helpful to determine whether the willmaker has the mental capacity to sign a Last Will and Testament.
- It provides evidence that the willmaker signed the will voluntarily and not under duress or as a response to a threat.
- Having a signed written will that is witnessed helps ensure that the will reflects the willmaker’s wishes.
If a Last Will or Testament is electronically done and already signed and witnessed using an electronic signature, do we still have these same assurances? Courts are asked to answer this very important question.
Benefits of Using an Electronic Will
Only a handful of states have enacted laws concerning electronic wills, so the potential benefits of using an electronic will are only applicable in those states.
- Convenience: The convenience of writing, signing, and witnessing an electronic will is one of its biggest benefits.
- Increased Use: People who may not otherwise take the time to write a will may be willing to write an electronic will.
Drawbacks of Using an Electronic Will
There are many potential drawbacks to using an electronic will, including:
- Your state may not have enacted a law for the use of electronic wills.
- Electronic wills increase the possibility that willmakers, especially the elderly or infirmed, will be put under undue influence, duress, or coercion to sign a will.
- There is no way to know if someone offscreen is directing the will signing process or even forcing someone to sign a will against their wishes.
- It is more difficult to determine whether a willmaker had the mental capacity to sign the will when they did so online and potentially alone.
- The current questions associated with the validity and use of an electronic will may open it for potential heirs to litigate over the estate.
- There are many open questions about how custodianship and storage of electronic wills will be handled.
- It is currently unclear how an electronic will can be revoked. For example, will deleting it and writing a new will be sufficient?
Electronic Last Wills and Testaments are likely to be increasingly used in the future, but it is too early in the process. Electronic law is an area of law that is developing quickly, and electronic wills may become the norm in the future. In the meantime, to ensure that your loved ones are cared for and that your estate is distributed in the manner you intended, we invite you to schedule an appointment with your estate planning attorney.
You can schedule a call with us or reach us directly at 855.631.3457 to learn more about how best to plan today to protect those most important to you.