Traditionally, important documents have been created and stored in paper form. As we become more familiar with technology, though, we increasingly draft, execute, and store documents in digital form. However, state legislatures are struggling to enact laws that allow people to create electronic Wills.
What constitutes an electronic Will?
The simplest definition of an electronic Will is that it is a Will signed electronically. An electronic Will exists as a digital record, not on paper as tradition dictates.
Arizona recently passed legislation allowing electronic Wills. To be valid, the Will must be:
- Created and maintained as an electronic record.
- Electronically signed by the testator or by someone else at the testator’s direction.
- Electronically signed by at least two witnesses who were there when the testator signed the Will and who signed soon after the testator did.
- State when the testator and witnesses electronically signed the Will.
- Include a copy of the testator’s government-issued ID.
The purpose of the Will is the same: to dispose of someone’s property after his or her death. It’s just the format, the method of signing, and the method of storing that are different.
How will an electronic Will be signed?
Traditionally, Will signings require that the testator (the person signing the Will) and the witnesses be together in one room at the time of signing. A notary public may be present if the Will contains a self-proving affidavit.
An electronic Will can be signed by a testator and witnesses who are in different locations. Video conferencing or other technology is used so that the parties can see each other as they sign.
Who will store an electronic Will?
The Florida Electronic Wills Act, which was vetoed by Governor Scott, required that a qualified custodian store the Will and other electronic records relating to the Will.
The qualified custodian, by the way, cannot be related to either the testator or the witnesses.
Why are people concerned about electronic Wills?
Many people, including Florida’s Governor Scott, worry about:
- The difficulty of remotely authenticating the identities of the testator and witnesses to the Will.
- Issues arising from the estates of nonresidents being probated in Florida because the qualified custodian of the Will is based in Florida.
- The security of the stored electronic documents.
- Confusion because some states recognize electronic Wills and others don’t.
- The possibility that it will become easier to exploit vulnerable testators or sign fraudulent documents.
Still Have Questions?
At this time, Minnesota does not recognize electronic Wills. In fact, only Nevada, Arizona, and Indiana have enacted laws allowing them. Until Minnesota passes similar legislation, it’s still important to have traditional, paper estate planning documents.
At Virtus Law, we assist clients in developing comprehensive estate plans. To schedule an appointment with one of our estate planning attorneys, contact us at 612.888.1000 or send an email to info@virtuslaw.com. Our main office is in Minneapolis, with other offices located in Maplewood, Cambridge, Edina, Mendota Heights, and Red Wing.