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Changes taking place in the USA in Estates Law

It seems that the prevalence of legal transactions taking place electronically has continued to increase, but that estate planning on the other hand has lagged behind technology. However, this may be changing. Even before the COVID-19 pandemic made social distancing necessary, electronic wills were gaining legitimacy in some states in the United States. The driving force behind this change was the Uniform Law Commission, an organization that provides states with model legislation they can adopt. In July of 2019, it approved the Electronic Wills Act[1](the “Act”).  This legislation provides a framework for valid electronic wills.

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 is required 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.

If uniformly adopted by the United States, this potential law would permit a testator to create, sign, notarize, and execute a valid will without ever having to be in the physical presence of another person. Traditionally, and generally, creating a will is a formal event requiring a number of witnesses, a notary, and the testator, to be in one location together at the time of execution – with the exception of holographic wills, for the states that permit them. This model law allows a testator to create an electronic representation of their wishes, have it witnessed and notarized online, simply by way of audio-visual communications.[2]

Nevada was the first state to authorize electronic wills some 17 years ago.[3]  Since that time, Indiana, Florida and Arizona have all adopted statues in various forms permitting digital signatures on, and storage of, an electronic will.[4]

While many welcome the idea of electronic wills, there are those who oppose moving towards electronic wills since they find comfort in the integrity of the document that the current formalities for executing a will provide.  In order to alleviate the concerns that some legal practitioners may have should electronic wills become the norm, statues should ensure to properly address the issues and concerns raised in the event electronic wills do indeed become valid.

[1] https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=43c08ac6-d6e0-bd80-80b2-85c3a6621e1e&forceDialog=0

[2] Electronic Wills: Technology Collides with Trusts and Estates Law, by Jill Roamr, June 25, 2019, found at: https://blog.eldercounsel.com/electronic-wills-technology-collides-with-trusts-and-estates-law

[3] ibid

[4] Electronic Wills: Here They Come, by Linda R. Garey & Christina L. Krakoff, March 18, 2020, found at: https://www.mclane.com/thought-leadership/electronic-wills-here-they-come?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

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