Digital Estate Planning Laws

Electronic wills are a last will and testament that you create and sign electronically instead of a paper copy.

What are Electronic Wills?

Throughout the Covid-19 pandemic, legislators became involved in devising ways for individuals to carryout legally legitimate wills and legal paperwork through digital estate planning laws, without the need to leave home. This is just one reason that e-wills have been increasingly popular. Nevertheless, this change isn’t associated to only the pandemic.

A lot of individuals carry out most of their business and personal matters online. To those people, the idea of signing a will with ink and paper might seem antiquated. As technology progresses and the need increases, e-wills may become more favorable and accepted.

E-wills are presently legally legitimate in only a couple of states. Nevertheless, as some states test electronic wills law making, others are going to probably follow. It’s important to note that certain states adopted e-will legislation briefly, only to rescind it later. It’s essential to check your state’s most present laws. This is true whether you devise a conventional will, an e-will, or any other estate planning documentation. A knowledgeable estate planning attorney can help if you require legal advice on these matters.

General Requirements of a Conventional Will

Many of the precautions and procedures for devising e-wills are revised from the legal requirements for conventional wills. So, it’s wise to discuss what makes a conventional will legally legitimate prior to getting into e-wills.

Even though the regulations for wills is subject to your state, there are specific things that a lot of states require for a legitimate will:

• Capacity: Typically, you (the “testator”) is required to be an adult that is mentally sound when you sign your will.
• Writing: Conventionally, wills are required to be recorded in written form.
• Signature: You are required to sign your will or direct an individual to do so for you.
• Witnesses: 2 adult witnesses are required to be present when you sign or acknowledge your signature. They are also required to sign the document.

Note that the “mentally sound” stipulation is typically pretty widespread. Someone suffering from mental illness or Alzheimer’s disease would be “mentally sound” if they comprehended the nature and repercussions of their will when signing it.

In a lot of states, there are limitations on who you can choose as your witness. These limitations help to hinder testators from getting coerced into signing a will unwillingly. Typically, you cannot decide on witnesses that are named beneficiaries in your will. Simply put, your witnesses should not stand to benefit from anything from your will. For this reasoning, they are typically known as uninterested witnesses.

Self-Proving Wills

In other states, you can make your conventional will self-proving when you and your witnesses pledge on testimony in the presence of a notary public. The probate court can systematically deem your will legitimate and does not need to summon your witnesses to bear witness with a self-proving will. Probate court is the court that is responsible for overseeing a testator’s estate following their passing away.

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

This act is only legitimate in states that decide to adopt it. This includes Utah and North Dakota. More states might do so down the road.

Basing on the laws for conventional wills, the E-Wills Act offers several protections to help guarantee that a testator’s will is legitimate and that they sign voluntarily.

Requirements for E-Wills Under the Act

In accordance with the E-Wills Act, an electronic will is legitimate if it follows specific requirements:

• The will is required to be in text form.
• The testator is required to sign the will or direct someone to do so on their behalf. This individual needs to be physically present with the testator.
• 2 witnesses are required to see the testator’s signature. Then they add their own electronic signatures to the paperwork.

Distinct states decide if witnesses are going to need to be physically present with the testator. As an option, states could allow witnessing remotely. With witnessing remotely, you and your witnesses don’t have to be in the same physical place with each other. Alternatively, your witnesses see you sign your will using a real-time audiovisual program.

Another option to witnessing is through a notary. Under the act, testators could sign their will in the physical or “e” presence of a notary public rather than gathering witnesses.

Where are E-wills Legal?

The statutes on e-wills differ by state. A couple of states have made e-wills legal, but the signing and witnessing regulations is subject to your state’s statutes. The following is a general summary of state statutes on e-wills at the time of this posting. Nevertheless, there may be additional provisions for e-wills outside of what is listed below. Prior to relying on an e-will, it’s a good idea to explore your state’s most present laws and speak with an attorney.

Arizona

E-wills are valid legally in Arizona, but only when they meet the requirements of Title 14 of Arizona statutes. To abide with this law, you are required to:

• Devise and store your electronic will in electronic form
• Electronically sign your will or direct someone to do it on your behalf
• Ask 2 witnesses to sign your will in a reasonable timeframe following them observing your signature or the recognition of your signature

Your witnesses are required to be physically present with you when signing your will or recognize your signature. They can’t remotely witness your will through an audiovisual program.

E-wills Vs Digital Estate Planning

E-wills should not be mistaken for digital estate planning. The difference between these comes down to the kind of assets they pertain to.

E-Wills

Through an e-will, you can provide for the allocation of your tangible assets following your passing away. When using an e-will, you do not sign on paper. As substitute, you implement a document that is in electronic form.

Like a conventional will, an e-will allows you to decide who is going to get your personal property and real property following your passing away. Real property is in reference to real estate such as homes and land. Personal property covers your other belongings, including your vehicles, accounts, heirlooms, home decor, and more.

Digital Estate Planning

This type of estate planning deals with the allocation of your digital assets following your passing away. Digital assets comprise of e-mail accounts, accounts of social media, blogs, on-line accounts, etc. Should you want to choose who is going to have access to your digital estate following your passing away, you should devise a digital will or add a stipulation concerning your digital assets to your last will and testament.

How an Attorney Can Assist

Conventional hard copy wills are a tried-and-true way for providing instructions on the allocation of your assets following your passing away. Nevertheless, as technologies evolve and people carry out more transactions online, e-wills are likely set to take a more notable position in the estate planning world.

Should you reside in a state that acknowledges e-wills, an estate planning attorney can let you know more about your options. They can also help you with any other estate planning documentation you would like to devise.

Source:

1. Kimberly Lekman, E. (2022, May 16). Digital Estate Planning Laws. Findlaw. Retrieved November 29, 2022, from https://www.findlaw.com/estate/planning-an-estate/digital-estate-planning-laws.html

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