July 5, 2017

Electronic Wills

by Morgan Wiener

As regular readers of this blog know, one of our favorite topics is digital assets, including estate planning for digital assets.  Today, we’re taking a slightly different focus and discussing developments in digital estate planning, more commonly known as electronic wills.

One of the more recent developments in estate planning is the concept of electronic wills. In general, an electronic will is one that is signed and stored electronically. Instead of signing a hard copy document in ink, the testator electronically signs the will, and it is also signed by witnesses and notarized electronically.  Not surprisingly, companies like LegalZoom are very interested in this topic.

Although the use of electronic wills may seem like a foregone conclusion in our increasingly digital world, Nevada is currently the only state that allows electronic wills. That may be changing though, as the Uniform Law Commission has recently formed a committee to draft a uniform law on the formation, validity, and recognition of electronic wills. According to the Uniform Law Commission’s website, the electronic wills committee may also “seek expansion of its charge to address end-of-life planning documents such as advance medical directives or powers of attorney for health care or finance.” Not to be left behind, the Trust and Estate Section of the Colorado Bar Association also recently formed a committee to study this topic and make recommendations.

Florida’s recent experience with electronic wills suggests that drafting effective legislation may be a difficult process.  Although the Florida senate unanimously passed the Electronic Wills Act, Governor Rick Scott vetoed the legislation.  Governor Scott cited a number of reasons for his veto, including that the remote notarization provisions in the act did not offer adequate protection for testators. You can read Governor Scott’s full letter explaining his concerns here. It will be interesting to see how the Florida legislature reacts and what the revised version of the act looks like.

Despite Florida’s setback and the lack of current legislation on electronic wills, the concept is not going away and they are sure to be a hot topic for estate planners in the coming years. And once electronic wills become common and start being probated, they are sure to be a hot topic for estate litigators as well. Watch this space for updates.