Arizona is one of the first handful of states to enact electronic Will legislation. Although other legal documents, such as real estate, financial and medical documents, have long been able to be electronically signed with a digital signature, Wills and other estate planning documents have remained more traditional requiring old fashioned pen-to-paper signatures. However, beginning June 30, 2019 e-Wills will be valid in Arizona. An e-Will may be signed electronically by their “maker”, witnesses and notary, and electronically stored; no paper or printed version is involved. This does not mean, however, that you can simply type up a Will on your smart phone or tablet. There are a lot of rules that make signing an e-Will even more complicated than a regular one.
The new law lets the “maker” of the e-Will, the required two witnesses, and a notary (optional) sign with electronic signatures on a digital document. But all those people generally still need to be in the same location, which does not simplify things all that much. You will be able to look at an electronic version of your Will and sign using a touch screen with a stylus or be able to click with keyboard choices. The concept of “signature” will focus on the electronic representation, and proof of your physical presence.
Once an electronic Will is executed, the document also must be maintained electronically. This is where things get a lot more complicated than a traditional paper Will. With those, you put them in the your safe or safety deposit box where it remains until needed. An electronic Will requires that it be in the continuous custody of a “qualified custodian.” A “qualified custodian” must (1) not be related to the maker of the Will by blood, marriage, or adoption; (2) may not be a recipient under the Will or related to a recipient under the Will; and, (3) have the ability to store electronic records in a system that protects the document from destruction, alteration, or unauthorized access and that can detect any changes. The electronic Will custodian must also include a photograph of the maker and the witnesses on the date of execution, copies of their identifying documents (driver’s licenses or passports, we assume), and a video recording of the signing. Arizona is not going to allow you or your family to keep your e-Will in your own computer.
The process of submitting the electronic Will to the probate court requires the qualified custodian of the electronic Will to create a “certified paper original” of the electronic Will and an affidavit which meets strict statutory guidelines. So much for saving on paper with an electronic Will. We have also yet to see how the probate court will handle probate filings with e-Wills. If you want to be the proverbial trail blazer or guinea pig, as the case may be, an e-Will may be for you. However, this new law does not seem to address powers of attorney documents or Trusts which are part of a complete estate plan.
Sooner or later all states will have to address electronically produced Wills and other directives as there seems to be a movement to introduce more legislation across the country. However, even with legislation it is uncertain whether electronic Wills will gain popularity. For example, electronic Wills have been legal in Nevada since 2001, but are reportedly rare.
Proponents of e-Wills argue that it is better for the public to make execution of a Will as easy as possible, since fewer than half of Americans have their estate plan in place. Those in favor also argue that electronic storage avoids the complications that occur when no one can find the paper Will. Those who oppose e-Wills have concern because it allows for the witnessing and notarization of Wills using remote audio and video technology without providing adequate safeguards to prevent fraud and exploitation of the most vulnerable persons, and to ensure the identity of the witnesses and the testator and the security and integrity of the electronic Wills.
While Arizona has taken a step towards modern digital reality, there are many questions yet be answered about the actual storage and use of an e-Will upon the maker’s passing. Only time will tell if the e-Will concept creates more benefit than burden.
-Stephanie A. Bivens, CELA, Esq.