There is a fast-paced adoption of eWill legislation brewing currently, with 14 states having enabled the legal recognition of digitally produced Wills as of July 2023. The rest of the U.S. states have an important decision to make: will they adopt eWill legislation, and when? Consumers will also need to make an informed choice between an eWill vs. a traditional Will, when the former option becomes available to them. Trust & Will compares and contrasts these two viable options.
The two faces of estate planning - traditional vs. digital
If you live in a state that recognizes an eWill as legally valid, then you have a choice between a traditional paper Will vs. a digital Will. Even if you do not live in a state that currently allows eWills, chances are, this option will become available to you within a few years.
For the sake of this article, let us define what we mean by a “digital Will.” Commonly called an eWill or electronic Will, this is a Last Will and Testament document that is wholly digital, meaning that it never has to be reduced to paper. We will explain the process shortly.
The objectives of a traditional and eWill are one and the same: to leave our end-of-life wishes and instructions such that they are legally bound and will be honored when we pass away. With this in mind, the key difference between a paper Will and eWill is the process in which it is created.
Here is an overview for how a paper Will is created:
1. Draft the Will: Either the Testator or the Testator’s attorney drafts the Will, including any and all essential information regarding the Testator’s final wishes. A Will is typically typed and then printed, although some states will recognize a handwritten (holographic) Will.
2. Sign the Will: The Will must be signed by the Testator in the presence of witnesses. The number of witnesses required and their qualifications can vary by jurisdiction. Generally, witnesses should be impartial and not beneficiaries of the will. The signature is provided in wet ink on the physical document.
3. Witness signatures: After the Testator signs the will, the witnesses must also sign it, attesting that they witnessed the testator's signature and that they believe the testator to be of sound mind and not under duress. The signatures are provided in wet ink on the physical document.
4. Notarizing the Will: In most states, you can notarize a Will to make it self-proving, meaning the witnesses won’t have to validate the document and the signatures in court. Traditionally, you are required to sign your Will in the presence of a notary public.
5. Safekeeping: Last but not least, you must decide where to store your physical Will document for safekeeping. The location should strike a good balance where it is safe and will protect your privacy, but accessible enough such that it can be discovered after you pass away. Many individuals choose to store their Will with their attorney or a safety deposit box. However, it is also common for individuals to keep their Will somewhere at home.
6. Review and update: It is recommended that you review and update your Will on a routine basis and especially after any major life events take place. When it comes to a traditional Will, you must create an entirely new Will to render the old version null and invalid. Thus, you essentially must repeat the process over again any time you wish to make any revisions.
Now that you have an overview of how a traditional paper Will is created, here is a look at the creation of an eWill:
1. Choose your digital platform: Select the online platform or service that will assist you in drafting your Will. Be sure to choose a platform like Trust & Will that is reputable for their compliance with the applicable state laws and customer support.
2. Draft your Electronic Will: Next, you will draw up your Will utilizing the digital platform of your choice. Some will provide a template that you fill in yourself, while others such as Trust & Will will guide you through a series of prompts and questions. Be sure to follow all instructions to ensure that you execute a legally valid Will.
3. Verify your identity: Most electronic will platforms will likely have identity verification measures to ensure that the Testator is the one creating the Will. This might involve methods such as two-factor authentication or biometric verification.
4. Provide your digital signature: Electronically sign the will using a digital signature, which is typically more secure than a traditional pen-and-paper signature because the signer's identity and date of signing are verified.
5. Witnesses: If your jurisdiction requires witnesses for eWills, follow the platform's process for adding witnesses. This might involve the witnesses providing their own digital signatures. A recorded video conference may be a part of the process.
6. Notarization: Again, you may choose to notarize your eWill to make it self-proving. If your state has enabled digital Wills, then they have likely also adopted laws that enable you to take advantage of remote notarization. Trust & Will has partnered with Notarize to make this a seamless experience for clients.
7. Secure storage: Once your eWill is complete, make sure you store it in a secure manner. Trust & Will provides an affordable membership option that includes a digital vault that is protected with bank-level encryption.
8. Review and update: Just as you would with your traditional Will, it is critical to routinely review and update your eWill. Trust & Will makes it easy to update your documents and ensure the newest version is accessible to your Executor should anything happen.
The rise of eWills: understanding the technological leap
You may be wondering why eWills are on the rise today. Word processing became available in the 1970s, and both digital signatures and video conferencing technologies became widespread in the 2000s. In other words, the technologies that make eWills possible technically existed decades ago, so why now?
During the COVID-19 pandemic, the world experienced significant disruptions in various aspects of life, including estate planning. As people faced lockdowns, social distancing measures, and restricted access to public spaces, traditional methods of creating legal documents became less accessible. This situation led to an increased interest in eWills for several reasons:
1. Remote access and convenience: With physical interactions limited or restricted, people sought alternative methods to handle important tasks like estate planning. eWills allowed individuals to create and update their wills remotely, without the need to visit lawyers' offices or engage in face-to-face meetings.
2. Health and safety: The fear of contracting COVID-19 led many individuals, particularly vulnerable populations, to avoid unnecessary outings. As a result, online solutions like eWills offered a safe way to address estate planning needs without putting oneself at risk.
3. Timeliness: The pandemic highlighted the importance of preparing for the unexpected. Many people recognized the urgency of having a valid Will in place to secure their assets and ensure their wishes were carried out in case of incapacitation.
4. Legal acceptance: During the pandemic, some jurisdictions that previously did not recognize eWills moved to establish temporary or emergency measures to accept electronic signatures and remote witnessing, acknowledging the practicality and necessity of such alternatives.
5. Affordable: The economic impact of the pandemic encouraged individuals to seek more affordable options for estate planning. Ewill platforms often provided cost-effective solutions compared to traditional legal services, making them attractive to a broader demographic.
6. Access for vulnerable populations: The pandemic disproportionately affected older adults and those with pre-existing health conditions. For these vulnerable populations, eWills offered a more accessible means of addressing estate planning needs, considering potential limitations in mobility or increased risk of exposure to the virus.
7. Flexibility: Given the uncertainty of the pandemic's duration and evolving circumstances, eWills offered greater flexibility for making timely updates or amendments to reflect changes in assets or beneficiaries.
During the pandemic, much of the world was forced to adapt to a remote model, whether they were ready or not. Many states moved to recognize eWills on the basis of a national emergency. It can be argued that this caused legislators and consumers alike to realize that the technology behind eWills is secure, reliable, and convenient, thus making it a viable option. While not all states currently accept eWills, we believe that it is a matter of time before all 50 states adopt eWill legislation.
Another key reason why eWills are more widespread today is thanks to the Digital Natives. This term describes anyone belonging to the Millennial generation and younger. These Americans had access to computers and the internet at birth or from an early age. Having spent nearly their entire lives surrounded by smart devices and social media, these generations expect digital-first processes and services. Millennials and the oldest members of Gen Z are well into adulthood, with many buying homes and starting families of their own (whether it be pets or babies.) This means there is a greater consumer demand for estate planning services that are accessible through the internet.
Next, we will discuss the benefits of both eWills and traditional Wills to highlight reasons for which you may want to choose either option.
Advantages of eWills: efficiency, accessibility, and flexibility
Several of the advantages of eWills were discussed in the previous section, which explained why eWills became widely accepted during the COVID-19 pandemic. It was not necessarily the pandemic that caused eWills to become popular. Rather, the pandemic served as a catalyst that highlighted areas of estate planning law and industry that were ready for improvement:
Efficient: The traditional method of executing a Will can take several days if not weeks. This is because an individual would need to meet with an attorney, have their Will drawn up, and then hold a meeting with witnesses for signing. Additionally, they would need to set up an appointment and visit a notary public should they wish to have their document notarized. In contrast, an individual executing an eWill could in theory complete the process in a matter of minutes or hours. They can draw up their Will online with the help of a platform, followed by seamless witnessing and remote notarization.
Accessible: Because an eWill can be executed digitally from start to finish, it increases the accessibility of estate planning. Individuals who cannot travel or do not live in proximity to physical estate planning services can set up their estate plan from the comfort of their own home and typically at the fraction of the cost.
Flexible: Due its digital nature, an eWill offers flexibility to its Testator. Something that is created easily and efficiently can offer the same qualities time and again for timely updates throughout one’s lifetime.
Benefits of traditional Wills: A nostalgic perspective
Traditional paper Wills offer several benefits that have withstood the test of time. First and foremost, paper Wills are widely recognized and accepted in all jurisdictions, providing a sense of legal certainty and familiarity.
For those that didn’t grow up in the digital age, a tangible, physical document that you can hold in your hands can instill a feeling of assurance. Similarly, providing a digital signature is something that can take getting used to. It may not provide the same feeling of officially as a wet ink signature.
Unlike electronic documents, paper Wills are not subject to the risks of technological malfunctions or cyber threats. (Although, they are subject to other types of risks, such as a house fire or getting lost.) For some individuals, the traditional approach may also carry sentimental value, as creating a handwritten Will can provide a personal and emotional connection to the process of estate planning.
Which is right for you? Tailoring your estate plan to fit your needs
This guide provided an overview of the differences between an eWill and a traditional Will, and the benefits of each. To decide which option is right for you, your very first step is to verify whether or not your state will recognize an eWill is legally valid. eWills are currently legally valid in 14 states, although this number will increase in the coming years.
If both options are available to you, then it’s truly up to you to decide which option best fits your personality. If you are a digital native who feels comfortable with digital signatures, video conferencing, and cloud storage, then eWills are likely the better fit for you.
If you are the more old-school type who wants to feel the touch of pen to paper and feels better keeping a printed copy in your safety deposit box, then a traditional Will is likely more your speed.
In many states, eWills are not yet valid on a permanent basis for all residents, while there may be case-by-case exceptions. If you live in one of these states but prefer the digital approach, don’t worry! Trust & Will provides the best of both worlds. By using our platform, you can still have the seamless experience of creating and storing your Will digitally, while receiving a hard copy package to sign, witness, and notarize. Then, you can move to a fully digital format once it is allowed in your state. Get started today!
[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.