The Coming Era of Electronic Wills

The times they are a-changin’. It was true when Bob Dylan wrote those words more than 55 years ago, and it’s just as true today. The black-and-white analog world becomes a distant memory as we travel further into the digital portal. And just like Ozzy Osbourne, many of us want to know, “How many bloody G’s are there?”

The digital world is causing state legislatures and courts to open the electronic doors of estate planning. And while it’s not widely talked about yet, you will hear more about electronic wills.

E-wills have all the features of their paper cousins in an electronic format. Someone still has to write the will. It still has to be witnessed and signed. But all that can be done electronically, if allowed. No longer do you need to be in front of an attorney to finalize your will.

In a few instances, state courts have recognized electronic wills as legitimate. But there hasn’t been broad acceptance of e-wills or laws defining their parameters. Recently, though, there’s been a move to make electronic wills more main stream.

The Uniform Law Commission (ULC) approved the Uniform Electronic Wills Act, also known as the E-Wills Act. The ULC is a group of law professors and practitioners who draft prototype state laws. Often, most states adopt a law within a few years after the ULC approves it.

The Florida legislature passed an e-wills law that takes effect in 2020.

Here are the rules so far:

  • E-wills must be in written text form. Audio and video recordings won’t do.
  • Witnesses are required. The E-Wills act allows states to decide whether witnesses must be physically present or if they can be in a remote location.
  • E-wills are not considered valid when the testator is defined as vulnerable, such as a resident of a nursing home. There is too much potential for fraud.
  • An e-will can be revoked or changed, electronically or the old-fashioned way. The uniform law says deleting a file or smashing a hard drive can be considered revocation of a will, depending on the circumstances.

If the idea of an electronic will appeals to you, don’t’ rush out to get one. There are still lots of issues to work out before the e-will is widely adopted. Florida, for example, says saving an electronic will on your smart phone or electronic device isn’t enough and requires a qualified custodian. That sounds simple enough, but becoming a qualified custodian requires a significant financial investment in technology and infrastructure that most law firms are not willing to make.

Estate planning is moving into the digital world, and wills—they are a-changin’.

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