More and more transactions are done digitally, but estate planning has lagged behind technology. That may be changing, though. Even before the coronavirus pandemic made social distancing necessary, electronic wills were gaining legitimacy.
An electronic will (or “e-will”) is a will that is created completely electronically, without paper and ink, including using digital signatures. The Uniform Law Commission — an organization that provides states with model legislation they can adopt — recently approved the Electronic Wills Act, which provides a framework for a valid electronic will. Under the Act, states determine how many witnesses are required or if a notary is required. Each state can decide whether the witnesses and notary must be physically present or if remote or virtual presence is permitted. The will has to be in text form, meaning that video and audio wills are not allowed. Once the will is signed, witnessed, and notarized (if required), the will is complete.
In addition to convenience, electronic wills could have some other benefits. If a will is stored online, it could be harder to lose the original copy. If the witness and notary verification process is remote, it can be recorded and stored with the will, so that the process is transparent. But there are concerns that electronic wills could be more subject to undue influence if a lawyer isn’t there in person to explain the details and witness the signing.
So far only Utah has enacted the Electronic Wills Act, but other states have their own laws that allow electronic wills. Nevada, Indiana, Arizona, and Florida have passed laws authorizing e-wills. California, the District of Columbia, New Hampshire, Texas, and Virginia have considered e-will legislation, but have not yet adopted a law. During the coronavirus pandemic, New York and Connecticut have issued executive orders allowing for the temporary electronic notarization or execution of wills.
Digital technology is only becoming more prevalent, so it seems likely that electronic wills are going to become more common, but there are questions as to how they will work in practice.