It’s the digital age, and many of us expect to conduct the majority of our personal and business affairs from our devices. Thus, many industries and businesses have adopted digital-first models. A key exception is the legal industry, where paper documents and filings are still the status quo.
However, things are beginning to change. Within just the past few years, an increasing number of states are updating their estate planning and probate laws to allow for the technologies that make eWills possible. In other words, they are beginning to recognize digitally-produced and stored Wills as legally valid.
At the same time, there are several challenges that must be overcome before all Americans will have access to this convenient option that makes estate planning more seamless and accessible. This guide will analyze the current legal landscape of eWills, including its current status, the challenges it faces, and more important information.
Navigating the legal landscape of eWills
eWills are becoming increasingly recognized and legalized across various states in the U.S. If you’re not sure whether or not you can execute a legally valid eWill in your state, it’s important that you check your jurisdiction’s latest regulations. Understandably, it is challenging to navigate because the legal landscape of eWills is constantly changing.
Here are some of the important factors contributing to the current legal landscape of eWills:
1. Recognition and validity: The most significant complexity surrounding eWill legality lies in the varying degrees of recognition and validity across states. Some states may have specific laws that fully recognize eWills, while others may not address them outright. This can make estate planning tricky for an individual who may not feel sure whether their eWill would be legally valid in one state but not in another.
2. Execution requirements: Different states have specific requirements for how a Will should be executed to be considered valid. This includes the number of witnesses, their qualifications, and the signing process. For eWills, states may have different rules regarding electronic signatures, witnesses' presence, whether or not remote conferencing is allowed, and how the Testator's intent is verified.
3. Notarization requirements: Some states require Wills, including eWills, to be notarized to be considered valid. Even when it is not required, it is a voluntary action that a Testator can take to make the Will self-proving. The rules regarding electronic notarization can vary from state to state.
4. Security: Traditional paper Wills are usually stored in a safe physical place, like a safe deposit box or with an attorney. With eWills, ensuring secure digital storage and preventing unauthorized access is critical. Some states may have specific requirements regarding storage or eWill registries.
5. Authentication: Verifying the authenticity of an eWill and preventing fraud is a significant concern. States might have different safeguards and requirements in place to ensure the testator's identity and intent are adequately established.
6. Remote execution: Some states may allow remote witnessing of wills, including eWills, through video conferencing or other means. However, the rules for remote execution can vary and may not be universally accepted.
7. Capacity and competency: The legal requirements for testamentary capacity and mental competency to create a Will are essential. Different states may have different standards for evaluating a Testator's mental state, and these requirements can influence the validity of an eWill from state to state.
States embracing eWills: where are we today?
At the time of the writing of this article, 14 U.S. states have passed laws that allow eWills to be recognized as legally valid. In addition to the 14, Washington, D.C., and the U.S. Virgin Islands have also adopted eWill legislation. (Find out which states in our guide, the Evolution of eWill Legislation.)
Of these 16 jurisdictions, 8 adopted the Uniform Law Commission’s Electronic Wills Act of 2019. 3 more states have introduced bills. This is a uniform piece of legislation that states can adopt and enact, thus creating consistency amongst states that have adopted it. It does not require eWills to comply with “any specific technical standard or process” so that states do not have to keep updating their laws with each technological development.
After the three pending states pass their E-Wills Act bill, we will have a remaining 33 U.S. states that are yet to adopt new laws that recognize eWills as legally valid.
Further, half of the states that have passed laws that recognize an eWill as valid are not uniform with the ULC’s E-Wills Act. This creates an inconsistency amongst jurisdictions, which can make cross-border estate planning challenging for individuals, namely those who own assets and property in more than one state.
Challenges in achieving consistent legal recognition
As of July 2023, there are 14 states that have adopted eWill legislation. In comparison to the 10 states last year, adoption of the legislation is relatively fast paced. When will eWills be recognized as legally valid in all 50 states?
While there is no clear answer, the answer does partially lie in the challenges that must be overcome or at least addressed:
Inconsistent state laws: Each state in the U.S. has its own laws and regulations regarding Wills. Achieving uniformity across all 50 states to recognize eWills would require substantial effort.
Legal formalities: Historically, Wills have been executed and recognized based on traditional paper-based formalities, including wet ink signatures and physically present witnesses. Introducing electronic signatures to facilitate the creation of eWills may be met with resistance from those who prefer to maintain the status quo.
Security and fraud concerns: Ensuring the security and integrity of eWills is a significant challenge. Preventing fraud, unauthorized access, and tampering with digital documents requires robust technological solutions and authentication processes to gain widespread trust in eWills. States will also need to establish a standard method of evaluating the mental capacity and competency of the Testator to ensure the validity of the eWill.
Remote technology: Many states require Wills to be witnessed and notarized. Technologies such as video conferencing for remote witnessing and notarization makes it possible to create a Will digitally, from end to end. However, states must accept these technologies and address questions such as the verification of remote party identities.
Undue influence: The legal system must continue to protect vulnerable individuals and prevent undue influence and coercion. Introducing new technologies to the traditional laws of estate planning designed to protect these individuals adds a layer of complexity.
Organizations like the Uniform Law Commission (ULC) have been working on the development and promotion of model legislation, such as the Uniform Electronic Wills Act (UEWA). In theory, the easiest solution would be for all U.S. states and jurisdictions to adopt this uniform bill. However, several states have already enacted their own legislation, thus causing discrepancies. Platforms such as Trust & Will are delivering legally valid eWills to consumers who reside in states that permit them. Time, awareness, education, and policy will help broaden the acceptance of eWills across the nation.
The importance of state-specific estate planning considerations
When planning your estate digitally, it is crucial to consider state-specific factors to ensure that your wishes will be legally upheld. Each state has its own set of laws and regulations concerning Wills, Trusts, and probate procedures. It is imperative that you pay attention to these laws to ensure a more seamless process for your estate and your loved ones.
You can tailor your estate planning documents, including your eWill, to align with the specific requirements and provisions of your state of residence, or the state(s) in which you own assets. Trust & Will, for instance, ensures that your document is compliant with the laws of the state the user selects. Taking the time to address state-specific factors in your estate plan will ensure peace of mind ensuring that your legacy is secured for your loved ones.
Ensuring validity: expert tips for cross-state eWills
Do you own assets or property in more than one state? If so, then you’ll need to pay particularly close attention to the concept of cross-border estate planning. (If you own assets or property in another country, then allow us to direct you to our guide on international estate planning with digital solutions.)
If you plan to execute an eWill, you’ll need to be careful to ensure that it is legally valid across the states in which you own property. This is because your Personal Representative may be required to file for probate in each state in which property is located or registered.
Here are some tips to help ensure that your eWill will be recognized and valid across different states:
If you have a particularly complex estate, it is worthwhile to consult an estate planning attorney who is specifically knowledgeable about eWills and cross-border estate planning. They can help you understand specific legal requirements that apply to you and create a strategy to ensure your estate plan is effective in the respective states.
Choose a reputable and secure platform for creating your eWill. Trust & Will is the nation’s leading estate planning platform that completed the first ever legally valid eWill in U.S. history. Trust & Will complies with the legal standards of each state that recognizes eWills and partners with Notarize to create a seamless notarization experience. Further, the platform features bank-level encryption and data protection.
If needed, tailor your eWill to meet the specific execution and witnessing requirements in each state where you own assets. Some states, for example, might require the physical presence of witnesses, while others might allow remote execution.
If an eWill’s validity is too much in question for a certain state, consider also executing a paper-based Will for that particular state. Taking a hybrid approach can help ensure that you meet all legal requirements.
Clearly state in your Will which state’s laws should govern its interpretation and administration. This can help avoid any confusion or potential conflicts if you own assets or have ties in more than one state. (This is especially true if you take a hybrid approach mentioned above.)
Keep a pulse on evolving eWill laws and keep your document up-to-date to make sure it reflects any changes, both for your own circumstances or state laws.
Store your eWill securely. Trust & Will offers a digital vault storage solution for an affordable monthly subscription that provides bank-level encryption. This type of storage makes it easy to keep your digital estate planning documents safe and up-to-date. Be sure your designated Executor, beneficiaries, and other interested parties are aware of the location of the eWill. Make sure your Executor knows how to access your storage method should you pass away or become incapacitated.
Keep your estate plan compliant with Trust & Will
Estate planning is an interesting activity. You’re creating a set of legally binding documents that dictate what should happen in the future. However, you don’t necessarily know when that future will be, or what it will look like. On the other hand, it’s critical to have your estate plan in place today should anything unexpected happen.
This is why an estate planning best practice is to review and update your estate plan periodically. This is especially true in an environment where the laws surrounding Wills are swiftly changing. Even if your state may not recognize an eWill as legally valid today, this could easily change within a couple of years.
If it sounds challenging to navigate the complexities of estate planning law as well as to keep up with its changes year over year, don’t worry. At Trust & Will, we have an expert legal team staying on top of these regulatory changes and ensuring that estate planning documents created through our platform remain legally compliant. Co-creating your estate planning documents with Trust & Will will give you peace of mind knowing that they are valid and effective, and takes the headache out of navigating the legal environment on your own.
[It’s important to note that given the dynamic nature of eWill legislation, the availability and specific requirements for eWills vary from state to state. Trust & Will is working to make our platform compliant with eWill regulations in the states where they are available. For the latest updates, be sure to check out our eWill page.]
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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.
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