Estate planning tends to be a conservative area of legal and financial services, which is at least partly why most people still execute their wills on paper in a lawyer's office, rather than electronically from their homes. However, in the the past few years, several states have enacted statutes to allow e-wills. These include Arizona, Florida, Indiana and Nevada. In addition, California, New Hampshire, Texas and Virginia are considering them.
Also, the Uniform Law Commission (ULC), a nonpartisan, nonprofit organization, recently issued the Uniform Electronic Wills Act (E-Wills Act). Although the uniform law doesn't apply in a given state unless the state adopts it — and lawmakers are free to modify its language — it provides clarity for states that have given the green light to e-wills.
So the question is, if you're eligible to execute an e-will, should you?
The E-Wills Act is designed to allow participants in the estate planning process (including lawyers, clients, witnesses and notaries) to draft, transfer, sign, and record wills and other documents in electronic form. At the same time, it makes it possible for these participants to preserve traditional protections against undue influence and fraud.
Although the rules are likely to vary from state to state, the E-Wills Act contemplates that any requirement that witnesses be in the physical presence of the client will be supplemented by an "electronic presence" option. The act defines electronic presence as "the relationship of two or more individuals in different locations communicating in real time" as if they were physically present in the same location.
For example, an attorney might prepare an e-will, send it to the client and a notary, and conduct a video chat with all of the parties. During the video conference:
E-wills offer several significant advantages, including ease of access and convenience. People who are elderly or disabled or have health problems that make it difficult to travel can review and execute wills and other estate planning documents from the comfort of their homes, without the need to send documents back and forth. Similarly, people who live in rural areas, or otherwise lack easy physical access to lawyers, notaries and witnesses, can execute these documents in a matter of minutes rather than hours or days.
E-wills may also appeal to younger adults, who are accustomed to the speed and convenience of online transactions. The availability of e-wills may encourage them to plan their estates earlier than they would otherwise. What's more, e-will laws that incorporate fingerprint scanning (or other identity verification procedures), archived video recordings and other security features may provide some protection from fraud and other forms of abuse.
Of course, there are also possible disadvantages, such as uncertainty about whether states without e-will laws will recognize e-wills executed in other states. This concern may be particularly relevant if you execute an e-will in a state that allows it, but later move to another state that doesn't. Although the E-Wills Act contemplates that the second state would give effect to the e-will under the laws of the first state, some states may not be so inclined.
Cybersecurity is also a potential pitfall. As with any type of online transaction, hacking and identity theft is a concern, so it's critical that you work with estate planning professionals and e-will vendors that incorporate robust security features.
Along the same lines, some in the legal industry have expressed concern that e-wills will be more susceptible to challenges based on fraud or undue influence. However, it appears that these anxieties generally revolve around the possibility that people will execute e-wills without involving an attorney.
If you're considering an e-will, ask your attorney whether he or she works with them. E-wills offer many advantages, but to avoid the risks, you'll need to follow certain procedures and protocols. For example, if you move, you'll need to ensure that your new state is willing to honor your electronic wishes.
Get in touch today and find out how we can help you meet your objectives.
