Posted On: March 2020
Today, most people communicate, shop, bank and even sign documents online. But one area that hasn’t yet embraced the digital revolution is estate planning. Most people continue to execute wills and related documents with paper and ink at a lawyer’s office in the presence of witnesses and a notary public.
This is beginning to change, though. As of this writing, there are two states that permit electronic wills (e-wills) by statute, and another two that are considering doing so. The Uniform Law Commission (ULC) recently issued the Uniform Electronic Wills Act (E-Wills Act).
The ULC isn’t a legislative body. It’s a nonprofit organization that “provides states with nonpartisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” A uniform law doesn’t apply in a given state unless the state adopts it, and lawmakers are free to modify the law’s language as they see fit.
The E-Wills Act is designed to allow participants in the estate planning process (lawyers, clients, witnesses, notaries) to create, transfer, sign, and record wills and other documents in electronic form, while preserving traditional protections against undue influence and fraud.
Although the rules will likely vary from state to state, the E-Wills Act contemplates that any requirement that witnesses be in the physical presence of the client will be supplemented by an “electronic presence” option. The act defines electronic presence as “the relationship of two or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.”
So, for example, an attorney might prepare an e-will, send it to the client and notary, and conduct a video chat with all of the parties during which the client signs the e-will, the witnesses sign the e-will and any necessary affidavits and the notary notarizes the documents and sends them back to the attorney.
E-wills offer several significant advantages, including:
Convenience. People who are elderly or disabled or have health problems that make it difficult to travel can review and execute wills and other estate planning documents from the comfort of their homes, without the need to send paper back and forth. Similarly, people who live in rural areas, or otherwise lack easy physical access to lawyers, notaries and witnesses, can execute these documents in a matter of minutes rather than hours or days.
Encouragement of estate planning. Millennials and other young people are accustomed to the speed and convenience of online transactions, so the availability of e-wills may encourage them to plan their estates earlier than they would otherwise.
Security. E-will laws that incorporate fingerprint scanning (or other identity verification procedures), archived video recordings and other security features provide some protection against fraud and abuse.
Uncertainty. Will states without e-will laws recognize e-wills executed in other states? Cybersecurity issues. As with any type of online transactions, hacking and identity theft is a concern, so it’ll be critical for vendors that provide e-will services to incorporate robust security features into their offerings.
Susceptibility to fraud and undue influence. Some have expressed concern that e-wills will be more susceptible to challenges based on fraud or undue influence. But it appears that these concerns generally revolve around the possibility that people will execute e-wills without involving an attorney.
The first disadvantage — uncertainty over whether e-wills will be recognized by other states — is particularly relevant if you execute an e-will in a state that allows it, but later move to another state that does not. Although the E-Wills Act contemplates that the second state would give effect to the e-will under the laws of the first state, some states may not be so inclined.
If you are considering an e-will, be sure to discuss it first with us. E-wills offer convenience, but it is still necessary to follow certain procedures and protocols. And if you may eventually relocate, it’s critical to ensure that the new state will honor your wishes.