Q. I recently did my estate planning with your firm and the peace of mind I feel makes it completely worth it to me. I have convinced my sister, Erica, in Charlottesville, to do the same, as well as my daughter who is a millennial. My daughter, who does everything online these days, asked me a question that has been on my mind as well, especially since my sister lives far away from your Fredericksburg office, as does she. Is it legal to sign a will electronically? My thinking is that most other tasks can be accomplished online, so why not this one, but I could be wrong. Please clarify.
A. We are so glad you have made estate planning a priority in your life and that doing so has brought you peace of mind!!
Currently, over half of Americans pay their bills online and 96% of us shop online, so it isn’t a stretch to say that most Americans are embracing technology. In the digital age, when many other significant transactions can be made electronically, the ability to create, sign, and store a will online is becoming a reality in some states, and many others are sure to follow.
A New Act Has Passed to Make Electronic Wills Legal
The Uniform Electronic Wills Act was promulgated this past summer, addressing the formation, validity, and recognition of electronic wills. According to a statement from the Uniform Law Commission, which created the Act, the Uniform Electronic Wills Act, “permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect. Most documents that were traditionally printed on paper can now be created, transferred, signed, and recorded in electronic form.” Although this new act is referred to as a uniform act, it does not apply in any given state unless it is adopted, and states are free to change the language of the uniform act.
The goal of the new uniform act is to promote easier access to people that otherwise may not partake in estate planning services.
Some states, including Nevada, Indiana, Arizona, and Florida, have passed laws authorizing electronic wills. California, the District of Columbia, New Hampshire, Texas, and Virginia have considered legislation on E-wills, but have not yet adopted a law.
How Electronic Wills Work
An electronic will allows a person to create and execute a will without leaving the comfort of their home, and without the need for paper. The process is designed to work as follows: the attorney creates a will online for the client and forwards it to an online notary who then has a video chat with the client, attorney, and the witness. The notary asks the client some questions, The witnesses electronically sign the document, and the notary notarizes the document and sends it back. The will can then be stored online without a hard copy changing hands. Services such as Notarize.com can be used for the notary and Adobesign and Docusign can be used for the signatures.
Advantages of Electronic Wills
The Uniform Electronic Wills Act is designed to ensure that appropriate technology-based safeguards are in place to ensure the integrity of electronic wills for admission to probate. Here are some other advantages of electronic wills:
• Young people will be more likely to do estate planning: There will be a market for electronic wills just like other online legal services. For young people with few assets, creating an electronic will may be better than no will at all, and easier for them, so they may be more likely to do it.
• Security: There will ample security and safeguards against financial elder abuse and fraud because electronic wills require a thorough identity verification process. According to Elder Law Answers, “every change to a document will include a video-recorded conversation between the client and the notary, where the client must show a valid government ID. That exchange, along with all other updates, is then stored with the E-will, creating a level of transparency never seen before.” In addition, with a digitized document, the signer will show a photo ID and answer a few questions to verify their identity. The signer and the notary connect by a live video feed where the notary observes the signing and then completes the notarization.
Reasons for pause:
As you can see, the electronic wills wave is undoubtedly coming. This wave will certainly carry some practical challenges along with it. Here are some of the reasons for pause at this moment:
• Will other states honor the will? If you do an electron it will in a state where it is allowed, but then die as a resident of another state, the other state will most likely not honor an electronic will; then your assets are subject to intestate probate administration in the state of your death and may not go to your intended beneficiaries.
• Not the same safeguards in place as an office visit: Traditional written will executions usually occur in an attorney’s office with proper procedures and safeguards put in place by a qualified lawyer in this area of law. However, many of those procedures and safeguards will not be in place during electronic executions of wills, which might make electronic wills target for attacks to their validity under theories such as lack of capacity, undue influence, duress, and coercion, especially if someone tries to do an electronic will on his or her own, without the active involvement of an attorney.
• Will they hold up in probate court? Until electronic signed wills have actually held up to challenges in probate contests, there is not going to be much clarity to attorneys who practice in this area of the law.
• Bad actors taking advantage of seniors: Despite the security that is being put in place, the ability to execute documents electronically may also open the door for “bad actors” to take advantage more easily of seniors by attempting to coerce them into signing electronic wills.
• People may be tempted to use companies that sell boilerplate online wills: The danger of shopping for a will online, instead of sitting down in an estate planner’s office, is that it won’t match your specific needs that an experienced estate planning attorney could assess by sitting down in his or her office.
Remember, creating a will is not about filling in the blanks. You should always discuss your situation and goals with an experienced estate planning attorney who knows the law and will make sure this most important document is executed properly. Never assume that a Google search along with an online will factory is the equivalent to an experienced attorney with a law degree.
We’ll update our readers if online estate planning documents become legal in DC, Virginia, and Maryland and if we choose to participate in using them!
Getting Your Estate Planning Documents in Order
When it comes to estate planning, naming your loved ones in a will is better than having nothing, but a will goes through the nightmare of probate just as surely as dying without a will.
To avoid probate altogether, you should seriously consider creating a Revocable Living Trust if you want your desired beneficiaries to inherit your assets without the expenses and complexities and hassles the court-supervised probate process.
If you or members of your family have not done Incapacity Planning or Estate Planning, or if a loved one needs nursing home care or even if your loved one is already in a nursing home, please contact us as soon as possible to make an appointment for a consultation:
Estate Planning Fairfax: 703-691-1888
Estate Planning Fredericksburg: 540-479-1435
Estate Planning Rockville: 301-519-8041
Estate Planning DC: 202-587-2797
About Evan H Farr, CELA, CAP
