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Electronic Wills Have Arrived (But Are They Legal?)

Updated: September 13, 2020

As remote document signing has become widely accepted, the process for creating wills has remained old-fashioned — until now.

When the ESIGN Act of 20001 became law, the legal world was upended. It mandated that electronic signatures are equally valid to those on paper documents, which allowed people to move through brick walls of lags caused by mail, finicky fax machines, and paper-and-ink, in-person requirements. But something was strategically barred from the e-sign pack: electronic wills. 

Now, with increasing demand for remote and virtual everything, e-wills are poised to take their place among the electronic signature assembly. And a few states are already allowing electronic wills.

Did you know? Approximately 6 in 10 adults do not have a will2

Contents

What is an E-Will?

Making an electronic will is the process of creating, storing, and signing a will virtually. With wills, the creation aspect is easy — eForms, RocketLawyer, and a number of other websites have seamless online will-making technology. But because the traditional process of making a will requires your witnesses and yourself to sign face to face, you must arrange a meeting, print out the will, sign in ink, and store the original copy in a safe place.

E-wills are entirely electronic. Witnesses — depending on the state — can be present via video chat and may sign in the presence of a virtual notary. Your will is then stored electronically, and your state may require a custodian who can access and hand off the electronic record when it comes time for probate court.

Why Have E-Wills Historically Been an Issue?

States have avoided allowing e-wills for a long time. Since the testator, or the person creating the will, is deceased at the time distribution of assets takes place — and since beneficiaries have been known to duke it out over the smallest missteps — the signing process has remained rigid. For centuries, all wills, whether written on paper, created with a lawyer, or made with online programs, have had a strict requirement: they must be signed with ink in front of a witness. If not, the probate court would not recognize it as valid and the will would likely be challenged.

The ESIGN Act and Wills

The ESIGN Act included special language that allows states to modify, limit, or supersede electronic signature rules. Inevitably, a growing movement for E-wills gained footing with the Uniform Law Commission, which is a nonprofit that proposes laws for states to adopt. In 2019, the commission dropped the Uniform Electronic Wills Act3, which served as a model for individual states. A few states have already adopted it, and more are considering implementation.

Pros and Cons of E-Wills

E-wills certainly open up the floodgates to an important life task that many millennials and others shelve simply because the process is increasingly anachronistic. The main takeaway of e-wills is the convenience and accessibility factor — there is only one original copy of a traditional will, and it’s kept in a safe place. Signing and storing wills online makes them more accessible.

Pros:

  • Convenience
  • Accessibility

But there is a shadowy fear behind e-wills. Many testators choose to seek legal counsel to help them draft their will, but opening access to e-wills could easily cut lawyers out of the equation. Moreover, the potential for exploitation is one of the main reasons some states may not agree to e-wills. (It should be noted that similar fears exist with traditional wills.)

Cons:

  • Easier to circumvent the traditional route of legal counsel
  • Potential for exploitation

Process of Making an Electronic Will

The means of creating and signing an e-will varies by state, and they will continue to vary as more states adopt the process. Generally, you can expect the process for e-wills to move like so:

  1. Create your will in readable text. You can use online programs or type out your own will with or without the help of a lawyer. The will cannot be an audio or video recording.
  2. Sign and date the will. Produce a binding electronic signature.
  3. Have two disinterested witnesses sign the will. States choose whether or not witnesses can be connected to you remotely or if witnesses must be in your physical presence. Some states do not allow remote witnesses.
  4. Self-proving. An e-will may be made self-proving at the time of signing and may be required by most probate courts — especially if electronic signatures are allowed. This requires a virtual notary and will be extra armament for your will in case it is challenged. Moreover, your witnesses would not be required to show up to probate court.
  5. Authentication characteristics. Some states may require supplemental evidence to prove that you created the will. This may amount to a fingerprint, retinal scan, video recording, or some other unique identifier.

Should I Make an Electronic Will?

Experts recommend e-wills for simple estates. If you have many assets and beneficiaries, it may behoove you to take to the standardized process of legal counsel and face-to-face signing.

E-Wills By State

State: E-Wills Allowed

Remote Witnesses Allowed?

Arizona (HB 2471)

No

(A.R.S. § 14-2518(A)(2), (3))

D.C. (temporary emergency orders — expired July 9th, 2020) Yes
Florida Yes, notary required
Indiana (§ 29-1-21-16) No
Nevada (NRS 133.085) Yes

Video

Sources

  1. https://www.fdic.gov/regulations/compliance/manual/10/x-3.1.pdf
  2. https://www.aarp.org/money/investing/info-2017/half-of-adults-do-not-have-wills.html
  3. https://www.uniformlaws.org/committees/community-home?CommunityKey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71

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