When most people think about having a will made, they think about a long, dusty document filled with confusing legal terms. While having an accurate will is still necessary, the need for a paper will is debatable.
All contracts used to be done in writing. Now, electronic versions are more common than ever. So the question is, can you and should you have an electronic will? In California, the answer is “not yet.”
In this article, you will find general information about the advantages and disadvantages of electronic wills—should they become available in California in the near future.
Traditional Requirements, Modern Times
People live on their cell phones, tablets and computers. Should courts really ignore electronic wills (e-wills) just because they are based on the use of new technology? If a will has to be “in writing” and requires a signature, does that include electronic versions that have been e-signed?
The COVID-19 pandemic has hastened this conversation. The virus is particularly hard on older Americans. It makes in-person meetings a risky business for many. It has also greatly expanded the use of virtual meetings for a host of activities, including court appearances.
A requirement that a witness be physically present when the willmaker signs the paper will could threaten the health or safety of both.
A State by State Approach
When it comes to wills and estate planning, the rules vary from one state to the next. The same is true for electronic wills. California does not permit electronic wills, but several other states already have legislation allowing for electronic wills on some level. Those states include:
- Arizona
- Florida
- Illinois
- Indiana
- Maryland
- Nevada
The number of states with these laws could expand rapidly in the coming years. A template for how state laws can be amended to allow for electronic wills exists. The Uniform Law Commission created the Uniform Electronic Wills Act to help states looking to make the change.
The guidelines update the elements of a will to include current technology. That means that e-signatures and forms of digital text are allowed, while things like audio or video wills would require transcriptions and signatures to be valid. The uniform rules allow states the option to keep or alter the in-person requirement for witnesses.
States that have already adopted the Uniform rules include Colorado, North Dakota, Utah and Washington. To reiterate, California has not adopted the Uniform rules.
Electronic Wills and You
The ability to use an electronic will and the desire to do so are different. If you prefer the traditional method, there is no need to consider an e-will. Estate planning should protect you and give you peace of mind. The traditional methods are not being replaced by electronic wills. They are simply an option if you choose to explore them.
If you are interested, there are a few potential drawbacks to consider. An electronic will can help a bad actor. Duress, coercion and undue influence are issues that can arise in the probate process.
Another issue is the mental capacity of the willmaker at the time the will is executed. Electronic wills may increase the potential for abuse. They can also increase the likelihood of loved ones fighting over potential abuse or unfitness after the fact. Higher value estates or those with terms that differ from the expectations of potential heirs could invite more litigation if they include electronic wills.
Another drawback is that the legal system hasn’t fully caught up with the realities of e-wills yet. Several states have laws about how wills are kept after they are written. In those states, there are services dedicated to will custodianship. Those services may not be equipped to handle electronic wills properly.
Many years of legal disputes have taught us what constitutes a will revocation when it comes to paper wills. The same is not true of electronic wills. If you deleted the will from your computer, did you revoke it? If you changed some part of it without a witness, is the entire will null and void? There is more certainty when it comes to using the paper method that has been around for countless years.
Reach Out to an Estate Planning Attorney Today
Are you still uncertain about how to create your will? We are here to help. If you have questions about creating a will or other estate planning document, call the Law Office of Janet L. Brewer at 650-325-8276.
