Digital Estate Planning Laws

Electronic Wills: What are E-Wills?

During the Covid-19 pandemic, lawmakers became interested in creating ways for people to execute legally valid wills and legal documents without needing to leave home. This is one reason that e-wills have been growing in popularity. But this change isn't linked to the pandemic alone.

Many people conduct the majority of their business and personal matters online. To those individuals, the idea of signing a will with pen and paper might seem outdated. As technology evolves and the demand grows, e-wills may become more popular and accepted.

E-wills are currently legally valid in only a few states. However, as some states test electronic wills legislation, others will likely follow. It's important to note that certain states adopted e-will legislation temporarily, only to revoke it later. So, 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. An experienced estate planning attorney can help if you need legal advice on these issues.

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.