More and more transactions are done digitally, but estate planning has lagged behind technology. That may be changing, though. The coronavirus pandemic has made social distancing necessary, and it’s likely that electronic wills will gain traction.
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. Virginia considered e-will legislation (most recently in 2018) but has not adopted such a law. During the coronavirus pandemic, the press reported that New York and Connecticut issued executive orders allowing for the temporary electronic notarization or execution of wills.
Digital technology is becoming more prevalent at the same time that social distancing will be with us for a while. The pressure for electronic estate planning will likely increase, and there is already a firm in at least one state with an online presence to create plans with the caveat that it is an online service providing legal forms and information only, and not a substitute for a lawyer’s advice.
For further reading, see this New York Times article on electronic wills.
*This article is provided for persons interested in elder law issues in Virginia and across the United States. This article has been written by a practitioner in the field of elder law, but unless otherwise noted, the writer is not affiliated with ThompsonMcMullan, P.C. Nothing in the newsletter or the articles is, or is intended to be, legal advice or a substitute for legal advice. If you need legal advice of any kind, please consult an attorney with experience in that area of the law, whether in our firm, or otherwise.