Dear Mr. Premack: With the pandemic, I am wondering if it is legal to make a Will on my computer. I don’t mean using one of those shady online services. I mean not having any kind of printed paperwork, just having my Will be made and stored digitally. Is this legal to do? – R.G.
You are asking about an “electronic Will”, the new legal term for Wills that are not paper based. There is an organization called the National Conference on Uniform State Laws (the “ULC”) which was established in 1892. The members are judges, lawyers, and law professors. They are responsible for proposals like the “Uniform Transfers to Minors Act” and the “Uniform Commercial Code,” both of which have been adopted widely by state legislatures, including both Texas and Washington States.
The ULC proposed the “Uniform Electronic Wills Act” in 2019, and it has been adopted into law in Colorado, North Dakota, Utah, and Washington State. Texas has not passed the Act into law, so its terms are not applicable for Texas residents. Texans do not have the option for electronic Wills.
The Washington legislature did pass the Act into law in 2021 (Senate Bill 5132) to take effect on January 1, 2022. The Act leaves intact the existing paper Will laws. It does not require that all Wills be electronic, just that the option to either make a paper Will or an electronic Will is available starting in 2022.
What are the formalities of making an electronic Will? The document must be readable as text at the time it is signed, meaning you have to be able to view it on your screen. It must be signed by the person making the Will (called the “Testator”) or can be signed by someone else so long as the signing takes place at the direction of the Testator and in the presence of the Testator. It must be signed by two or more qualified witnesses in the personal or electronic presence of the Testator (for instance, over a video conference). An affidavit can and should be signed at the same time to make the Will self-proven, which must be done in the personal presence of a notary or the online presence of an “electronic records notary”. The affidavit must conform substantially to the wording set out in the Act.
What does it mean to “sign” an electronic Will? Under the Act, the signatures can be affixed physically or electronically. With a pen-enabled touch screen computer the Will may be signed on screen just like a piece of paper. Or a scanned image of each signature could be pasted into the electronic Will. Signing can be, under the law, any electronic symbol, electronic sound, or process affixed to or associated with the Will with intent to authenticate or adopt the Will. That is awfully broad and may lead to litigation or to contest of an electronic Will if a snubbed family member claims the process was faulty.
What happens to the electronic Will after it is properly signed? Here is what you do NOT do: do NOT save it to your hard drive or to a memory stick and toss it in a drawer. Rather, the Act requires that the electronic Will be stored by a “Qualified Custodian” at all times following the Will’s signing. Certain people may NOT be custodian: the Testator, any minor, anyone of unsound mind, anyone convicted of a felony or other crime of moral turpitude, any heir or beneficiary or other person with an interest in the Testator’s estate, or any corporation, LLC, or Limited Partnership that is not expressly authorized. With those exceptions, any adult resident of Washington, any bank with a trust department, any nonprofit corporation formed for the purpose of acting as Custodian, any attorney-owned professional organization, or a “Will repository” in the county where the Testator lives (for example, the King County Superior Court) is a Qualified Custodian.
When the Testator dies, the Qualified Custodian must deliver the electronic Will to the court along with an Affidavit confirming the chain of custody. Leaving the electronic Will with someone who is not a Qualified Custodian requires the court to treat the electronic Will as though the original was destroyed – a situation that requires much more process in court before the improperly tracked electronic Will can be admitted to probate.
What about the substantive part of the Will giving instructions? Just like a paper Will, an electronic Will should appoint an Executor, should state the Testator’s intended asset distribution plans, should contain proper tax and debt provisions, and should contain other necessary legal instructions for the estate. Every Testator should rely on a licensed, experienced estate planning attorney to properly put their wishes into writing. A Will is not a do-it-yourself or buy-it-online project. Your lifetime of work and effort is at stake. You should call on professional legal advice when preparing a Will for your life-long hard-earned accumulation of resources and for the care of your survivors – be it an electronic Will in Washington, or a traditional paper Will in Washington or Texas.
Column published on September 27, 2021.
Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact Premack, click here.