Digital Estate Planning Laws

The digital age has changed the way we conduct almost all aspects of personal business. This extends to estate planning, including growth in electronic wills (“e-wills") and rights relating to digital assets when you pass away. This FindLaw article discusses both.

What Are E-Wills?

An electronic will (an “e-will") is a last will and testament (a “will") that you make and sign electronically rather than on a paper copy. E-wills have grown in popularity in recent years.

During the COVID-19 pandemic, lawmakers became interested in creating ways for people to execute legally valid wills and other legal documents at home. This is one reason that e-wills have been growing in popularity, but this change isn't linked to the pandemic alone.

Today, conducting most of our business and personal matters online is routine. Signing a will with pen and paper might seem outdated to some. As technology evolves and the demand grows, e-wills may become even more popular. Currently, e-wills are only legally valid in several states. As additional states research electronic wills legislation, more will likely adopt e-wills as an option.

It's essential to check your state's most current laws. This is true whether you create a traditional will, an e-will, or any other estate planning document. Experienced estate planning attorneys stay updated on applicable laws and can provide you with legal advice during the planning process.

General Requirements for a Will

Many safeguards and procedures for creating e-wills are adapted from the legal requirements for traditional wills. Knowing what makes a conventional will legally valid helps in understanding e-will requirements.

The rules for wills depend on your state but some requirements are common in most states for a valid will, including:

• Capacity: You (the "testator") must be an adult of sound mind when you sign a will
• Writing: Traditionally, wills must be in a written format
• Signature: You must sign your will or direct someone to do so
• Witnesses: Two adult witnesses should be present when you sign or acknowledge your signature; they must also sign the document

Note that the "sound mind" provision is generally pretty broad. Someone with mental illness or Alzheimer's disease would be of sound mind if they understood the nature of tangible assets and the consequences of their will. The relevant time for determining capacity is when the testator signs the last will and testament.

Any incapacity or loss of a sound mind will not impact the validity of a will when the testator was of sound mind at the document's execution. The decedent's wishes should be honored when the testator has a valid will under the decedent's state law.

In many states, there are restrictions on whom you can choose as a witness. These restrictions help prevent testators from getting pressured into signing a will involuntarily. Typically, you cannot select witnesses named as beneficiaries in your will, such as close family members. In other words, your witnesses should not stand to gain anything from your will. For this reason, the witnesses are usually called disinterested witnesses.

Self-Proving Wills

In some states, you can make your traditional will self-proving if you and your witnesses swear to an affidavit before a notary public. A probate court can automatically consider your will valid. It does not need to call your witnesses to testify with a self-proving will. Probate courts are the courts responsible for administering a testator's estate after their death.

Some states, such as Indiana and Utah, allow testators to make their e-wills self-proving.

What Is the Uniform Electronic Wills Act?

The Uniform Electronic Wills Act is also known as UEWA or the E-Wills Act. The E-Wills Act is a model e-wills law created by the Uniform Law Commission. The Uniform Law Commission is an American non-profit company that has existed for over 100 years. Its purpose is to draft model laws that states can enact if they choose.

The E-Wills Act is only valid in states that choose to adopt it. Drawing on the laws for traditional wills, the E-Wills Act provides several safeguards to ensure that a testator's will is valid and that they sign willingly.

Requirements for E-Wills Under the E-Wills Act

According to the E-Wills Act, an electronic will is valid if it follows certain requirements:

• The will must be in a text format.
• The testator must sign the will or direct someone to sign for them. This person would need to be physically present with the testator.
• Two witnesses must observe the testator's signature. They must then add their own digital signatures to the document.

Individual states decide whether witnesses need to be physically present with the testator. As an alternative, states could permit remote witnessing. With remote witnessing, you and your witnesses do not have to be in the same physical location. Instead, your witnesses observe you sign your will through real-time audiovisual software.

Another alternative to witnessing is notarization. Under the E-Wills Act, testators could sign their will in a notary public's physical or electronic presence instead of gathering witnesses.

What States Allow E-Wills?

The laws on e-wills vary by state. A few states have made e-wills legal. The signing and witnessing rules depend on your state's laws. Below is a general rundown of state laws on e-wills at the time of this writing. However, there may be additional requirements for e-wills beyond what is listed below. Before relying on an e-will, it's wise to research your state's most current laws and talk to an attorney.

Arizona

E-wills are legally valid in Arizona, but only if they fulfill the requirements of Title 14 of Arizona statutes. To comply with this law, you must:

• Create and store your electronic will in an electronic format
• Electronically sign your will or direct someone to do so for you
• Ask two witnesses to sign your will within a reasonable time after they observe your signature or the acknowledgment of your signature

Your witnesses must be physically present when you sign your will or acknowledge your signature. They cannot witness your will remotely via an audiovisual electronic medium.

Colorado

Colorado enacted the Colorado Uniform Electronic Wills Act (CUEWA) in 2021. The CUWEA provisions are broadly analogous to the Colorado Probate Code governing the execution and validity of traditional paper wills, with certain exceptions. The CUWEA incorporates by reference Colorado's statutes, common law, and equitable doctrines applicable to traditional wills, except as specifically modified by the CUWEA.

Colorado is one of few states that gives a notary the legal authority to acknowledge a will instead of witnesses. The CUWEA allows “electronic presence" to suffice for the presence requirement for the execution of e-wills where the testator and the witness or notary are not in the same room.

The CUWEA also requires that the signature on an e-will be an electronic image of the testator's or witness's signature in that person's handwriting. Colorado's version of the UEWA does not allow using an “e-signature" or typed signature to sign an e-will. This adds a level of protection to ensure the testator intends to create a will.

Florida

Florida law recognizes electronic wills as legally valid. You must sign your will in front of two witnesses. Under Chapter 732 of Florida statutes, remote witnessing and notarization are acceptable.

Florida law contains a special provision for "vulnerable adults." A vulnerable adult is defined as an adult who has difficulty with:

• Daily living tasks
• Self-care
• Personal protection

These difficulties could result from any disability, injury, or impairment. For vulnerable adults, remote witnessing is not an option. When the testator is a vulnerable adult, witnesses must be physically present with the testator at execution. The witnesses to a vulnerable adult's will must observe the testator's signature and sign the will in the testator's physical presence.

Illinois

Electronic wills are legally valid in Illinois. E-wills must fulfill signing and witnessing rules. Under the Illinois Electronic Wills and Remote Witnessing Act, you must sign your electronic will or direct someone to do so. Two witnesses must sign the electronic will after observing your signature. If you prefer, you can acknowledge your signature in front of these witnesses after signing.

Illinois law permits remote witnessing, but the witnesses must be physically located in the United States when they witness your signature.

Indiana

Although e-wills are legally valid under Indiana's Probate Code, an Indiana e-will must satisfy several legal requirements:

• You must electronically sign your will or direct someone to do so on your behalf.
• Two witnesses must electronically sign your will after observing your signature. You and your witnesses should all be physically present with one another when this occurs. Neither of the witnesses can be the person who signed your name to your will for you.
• You must declare to your witnesses that you understand that you are signing your will.

After completing the above steps, you must direct the software program you are using to finalize your will. If you cannot do this, you can direct another adult who is not one of your witnesses to do so on your behalf.

In Indiana, you have the option of creating a self-proving electronic will. To do so, add an extra clause to your e-will. Your witnesses will need to sign again to attest to this clause. A self-proving will is beneficial because it contains proof of its validity. This helps a probate court accept it as authentic when the time comes to administer your estate.

Indiana statutes contain an additional provision stating that remote witnessing is acceptable if an attorney or paralegal supervises the process. This is in contradiction with other parts of the statute. Further, Indiana legislators have proposed changes to the law. These changes would make it clear that remote witnessing is acceptable in Indiana.

Because Indiana law is unclear on remote witnessing, it's probably safer to sign your will in the physical presence of your witnesses.

Maryland

Under Maryland statutes you can create an electronic will, but you and your witnesses must seek the help of an attorney to do so. The attorney must be either physically or electronically present at the signing. Further, you and the attorney must create physical paperwork to create a certified will.

If you want to create an e-will in Maryland, you must check the most current version of your state laws. Next, you will need to seek the assistance of an experienced estate planning attorney.

Nevada

Nevada permits electronic wills, but there are several requirements for creating a valid one. According to Title 12 of Nevada statutes, an electronic will must be completed electronically, and there must be an electronic record. You must electronically sign and date the document.

Further, to create a valid Nevada electronic will, you must provide an “authentication characteristic" with your signature. This would include a fingerprint, retinal scan, video recording, digital signature, or other reasonable authentication. As an alternative, you can either:

• Seek the services of a notary public who can electronically notarize your will
• Get electronic signatures from at least two witnesses

Providing an acceptable signature authentication characteristic may take time and effort. If you are concerned about this, it may be safer and easier to reach out to an electronic notary who has experience with e-wills.

North Dakota

North Dakota is one of the states that has adopted a version of the Uniform Law Commission's E-Will Act. Under North Dakota's Uniform Electronic Wills Act:

• An electronic will must be readable as text
• You must sign or direct someone to do so
• Two witnesses or a notary must sign the will after observing your signature

You can create a video recording or additional record to show that you intended the electronic document to be your last will and testament. This is unnecessary, but North Dakota law provides that this outside evidence can help establish your will's validity.

Utah

Utah is another state that has adopted a version of the E-Wills Act. Like in North Dakota, a Utah electronic will must be in a readable text format. Under Utah's Uniform Electronic Wills Act, the testator of a Utah electronic will must sign the will or instruct someone to do so on their behalf.

Two witnesses must sign the will within a reasonable time after observing your signature. They can observe your signature in your physical or electronic presence.

In Utah, you can make an e-will self-proving. To do so, you and your witnesses must swear to an affidavit before a notary public. It's a good idea to seek a notary public who has experience with e-wills.

E-Wills Versus Estate Planning for Digital Assets

E-wills are distinct from digital estate planning. The distinction between these concerns the type of assets they address.

With an e-will, you can provide for the distribution of your physical assets after your death. Like a traditional will, an e-will lets you choose who should receive your personal and real property after your death. Real property refers to real estate like homes and land. Personal property covers your other possessions. This can include items of monetary value such as your cars, bank accounts and other financial accounts, furniture, and more. It can also include things such as heirlooms of great sentimental value.

Your beneficiaries will receive the items. Your personal representative is primarily responsible for distributing the assets. They are also responsible got determining who gets the property should a beneficiary provide a disclaimer stating they do not wish to accept a gift.

You can pass along assets to loved ones. You can bequeath assets from bank accounts not subject to a payable on death (POD) or transfer on death (TOD) order. You can determine who will receive items of sentimental value. When you use an e-will, you don't sign on paper. Instead, you execute a document that is in an electronic format.

Digital estate planning deals with distributing your digital assets after your death. Digital assets include email accounts, social media accounts, blogs, online accounts, and others. If you want to choose who will access your digital assets after your death, you should either create a digital will or you should add a provision about your digital assets to your last will and testament.

Most states have passed laws that give a person's family or digital executor the right to access and manage their assets after death. The Uniform Law Commission created the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in 2015.

RUFADAA

The RUFADAA governs access to a person's online accounts when the account owner dies or loses the ability to manage the electronic account. Most states have enacted RUFADAA. The act allows fiduciaries to manage your digital property. This property includes computer files, domain names, and digital currency. It would restrict a fiduciary's access to electronic communications such as e-mail, text messages, and social media accounts unless the original user consented to the fiduciary's access in a will, trust, or power of attorney.

Even if your state has adopted RUFADAA, you should execute a plan for your digital assets. If you would like your executor or power of attorney to have access to your digital assets, it's wise to make it clear in your estate planning documents that you would like to grant such access.

Florida Fiduciary Access to Digital Assets Act

Florida enacted the Fiduciary Access to Digital Assets Act in 2016. The Act aims to facilitate fiduciary access to digital accounts while respecting the privacy and intent of the online account holder. The Act seeks to address online assets and digital property since traditional Florida probate law was not designed to address them.

Generally, only a fiduciary or designated recipient has the legal authority to access your digital assets upon death. Any other access would be considered unauthorized access.

“Digital assets" means an electronic record—including electronic communications—that an individual has a right or interest. The term “digital assets" does not apply to the underlying asset or liability unless the asset or liability is itself an electronic record. For example, the cash in your online bank account is not a digital asset because the underlying money is physical. On the other hand, photos, digital books, documents, emails, blogs, and cryptocurrency (such as Bitcoin), are considered digital assets. This is the case because they are an electronic record.

If your estate plan addresses digital assets, the fiduciary or designated recipients may access the content of electronic communications and other digital assets when they supply the custodians with:

• A written disclosure
• A certified copy of the death certificate of the user
• A certified copy of letters of administration or other court order

A copy of the user's will, trust, power of attorney, or other record showing the user's consent to disclose the content of electronic communications

How an Attorney Can Help

Traditional hard copy wills are a time-tested method for providing instructions on distributing your assets after your death. However, as technologies evolve and people perform more transactions online, electronic wills are likely poised to take a more prominent role in estate planning.

If you live in a state that recognizes e-wills, an estate planning attorney can tell you more about your options. They can also assist you with any other estate planning documents you would like to create.

General Requirements of a Traditional Will

Many of the safeguards and procedures for creating e-wills are adapted from the legal requirements for traditional wills. So, it's a good idea to discuss what makes a conventional will legally valid before diving into e-wills.

Although the rules for wills depend on your state, there are certain things that most states require for a valid will:

• Capacity: Generally, you (the “testator") must be an adult of sound mind when you sign a will.
• Writing: Traditionally, wills must be recorded in a written format.
• Signature: You must sign your will or direct someone to do so on your behalf.
• Witnesses: Two adult witnesses should be present when you sign or acknowledge your signature. They must also sign the document.

Note that the "sound mind" provision is generally pretty broad. Someone with mental illness or Alzheimer's disease would be of "sound mind" if they understood the nature and consequences of their will when they signed it.

In many states, there are restrictions on who you can choose as a witness. These restrictions help to prevent testators from getting pressured into signing a will involuntarily. Typically, you cannot choose witnesses who are named beneficiaries in your will. In other words, your witnesses should not stand to gain anything from your will. For this reason, they are usually called disinterested witnesses.

Self-Proving Wills

In some states, you can make your traditional will self-proving if you and your witnesses swear to an affidavit in front of a notary public. A probate court can automatically consider your will valid and does not need to call your witnesses to testify with a self-proving will. Probate courts are the courts that are responsible for administering a testator's estate after their death.

Some states, such as Indiana and Utah, allow testators to make their e-wills self-proving.

What Is the Uniform Electronic Wills Act?

The Uniform Electronic Wills Act is also known as UEWA or the E-Wills Act. The E-Wills Act is a model e-wills law that the Uniform Law Commission has created. The Uniform Law Commission is an American non-profit company that has been in existence for over 100 years. Its purpose is to draft model laws that states can enact if they choose to do so.

The E-Wills Act is only valid in states that choose to adopt it. This includes North Dakota and Utah. More states may do so in the future.

Drawing on the laws for traditional wills, the E-Wills Act provides several safeguards to help ensure that a testator's will is valid and that they sign willingly.

Requirements for E-Wills Under the E-Wills Act

According to the E-Wills Act, an electronic will is valid if it follows certain requirements:

• The will must be in a text format.
• The testator must sign the will or direct someone to do so for them. This person would need to be physically present with the testator.
• Two witnesses must observe the testator's signature. They then add their own digital signatures to the document.

Individual states decide whether witnesses would need to be physically present with the testator. As an alternative, states could permit remote witnessing. With remote witnessing, you and your witnesses do not have to be in the same physical location with each other. Instead, your witnesses observe you sign your will through real-time audiovisual software.

Another alternative to witnessing is notarization. Under the E-Wills Act, testators could sign their will in a notary public's physical or electronic presence instead of gathering witnesses.

Where Are E-wills Legal?

The laws on e-wills vary by state. A few states have made e-wills legal, but the signing and witnessing rules depend on your state's laws. Below is a general rundown of state laws on e-wills at the time of this writing. However, there may be additional requirements for e-wills beyond what is listed below. Before relying on an e-will, it's wise to research your state's most current laws and talk to an attorney.

Arizona

E-wills are legally valid in Arizona, but only if they fulfill the requirements of Title 14 of Arizona statutes. To comply with this law, you must:

• Create and store your electronic will in an electronic format
• Electronically sign your will or direct someone to do so for you
• Ask two witnesses to sign your will within a reasonable time after they observe your signature or the acknowledgment of your signature

Your witnesses must be physically present with you when you sign your will or acknowledge your signature. They cannot witness your will remotely via an audiovisual electronic medium.

Florida

Florida law recognizes electronic wills as legally valid. You must sign your will in front of two witnesses. Under chapter 732 of Florida statutes, remote witnessing and notarization are acceptable.

It's essential to be aware that Florida law contains a special provision for "vulnerable adults." A vulnerable adult is legally defined as an adult who has difficulty with daily living tasks, self-care, or personal protection. These difficulties could be due to any disability, injury, or impairment.

For vulnerable adults, remote witnessing is not legally valid. The witnesses to a vulnerable adult's will must observe the testator's signature and sign the will in the testator's physical presence.

Illinois

Electronic wills are legally valid in Illinois, but they must fulfill signing and witnessing rules.

Under the Illinois Electronic Wills and Remote Witnessing Act, you must sign your electronic will or direct someone to do so on your behalf. Two witnesses must sign the electronic will after observing your signature. If you prefer, you can acknowledge your signature in front of these witnesses after the time of signing.

Illinois law permits remote witnessing, but the witnesses must be physically located in the United States when they witness your signature.

Indiana

Although e-wills are legally valid under Indiana's Probate Code, the law states that the witnesses and testator must be in each other's physical presence at the time of signing.

An Indiana e-will must satisfy several legal requirements:

• You must electronically sign your will or direct someone to do so on your behalf.
• Two witnesses must electronically sign your will after observing your signature. You and your witnesses should all be physically present with one another when this occurs. Neither of the witnesses can be the person who signed your name to your will for you.
• You must declare to your witnesses that you understand that you are signing your will.

After the above steps are completed, you must direct the software program you are using to finalize your will. If you cannot do this, you can direct another adult who is not one of your witnesses to do so on your behalf.

In Indiana, you have the option of creating a self-proving electronic will. To do so, you need to add an extra clause to your e-will. Your witnesses will need to sign again to attest to this clause. A self-proving will is beneficial because it contains proof of its own validity. This helps a probate court to accept it as authentic when the time comes to administer your estate.

Notably, Indiana statutes contain an additional provision stating that remote witnessing is acceptable if an attorney or paralegal supervises the process. This is in contradiction with other parts of the statute. Further, Indiana legislators have proposed changes to the law. These changes would make it clear that remote witnessing is acceptable in Indiana.

Because Indiana law is unclear on remote witnessing, it's probably safer to sign your will in the physical presence of your witnesses.

Maryland

Under Maryland statutes, you can create an electronic will. But you and your witnesses must seek the help of an attorney to do so. The attorney must be either physically or electronically present at the signing. Further, you and the attorney must create physical paperwork to create a certified will.

If you are interested in creating an e-will in Maryland, you will need to check the most current version of your state laws. Next, you will need to seek the assistance of an experienced estate planning attorney.

Nevada

Nevada permits electronic wills. But there are several requirements for creating a valid one. According to Title 12 of Nevada statutes, an electronic will must be completed electronically, and there must be an electronic record. You must electronically sign and date the document.

Further, to create a valid Nevada electronic will, you must provide an “authentication characteristic" with your signature. This would include a fingerprint, retinal scan, video recording, digital signature, or other reasonable authentication. As an alternative, you can:

• Seek the services of a notary public who can electronically notarize your will; or
• Get electronic signatures from at least two witnesses

Providing an acceptable signature authentication characteristic may be difficult. If you are concerned about this, it may be safer and easier to reach out to an electronic notary who has experience with e-wills.

North Dakota

North Dakota is one of the states that has adopted a version of the Uniform Law Commission's E-Will Act. Under North Dakota's Uniform Electronic Wills Act:

• An electronic will must be readable as text
• You must sign or direct someone to do so
• Two witnesses or a notary must sign the will after observing your signature

You can create a video recording or additional record to show that you intended the electronic document to be your last will and testament. This is not necessary, but North Dakota law provides that this type of outside evidence can help establish your will's validity.

Utah

Utah is another state that has adopted a version of the E-Wills Act. Like in North Dakota, a Utah electronic will must be in a readable text format. Under Utah's Uniform Electronic Wills Act, the testator of a Utah electronic will must sign the will or instruct someone to do so on their behalf.

Finally, two witnesses must sign the will within a reasonable time after observing your signature. They can observe your signature in your physical or electronic presence.

In Utah, you can make an e-will self-proving. To do so, you and your witnesses need to swear to an affidavit in front of a notary public. It's a good idea to seek a notary public experienced with e-wills.

E-wills Versus Digital Estate Planning

E-wills should not be confused with digital estate planning. The distinction between these comes down to the type of assets they address.

With an e-will, you can provide for the distribution of your physical assets after your death. When you use an e-will, you don't sign on paper. Instead, you execute a document that is in an electronic format.

Like a traditional will, an e-will allows you to choose who should receive your personal property and real property after your death. Real property refers to real estate like homes and land. Personal property covers your other possessions, including your cars, accounts, heirlooms, furniture, and more.

Digital estate planning deals with the distribution of your digital assets after your death. Digital assets include email accounts, social media accounts, blogs, online accounts, and others. If you want to choose who will have access to your digital assets after your death, you should create a digital will or add a provision about your digital assets to your last will and testament.

How an Attorney Can Help

Traditional hard copy wills are a time-tested method for providing instructions on distributing your assets after your death. However, as technologies evolve and people perform more transactions online, electronic wills are likely poised to take a more prominent position in the world of estate planning.

If you live in a state that recognizes e-wills, an estate planning attorney can tell you more about your options. They can also assist you with any other estate planning documents you would like to create.