Several states including Nevada, Indiana, Florida and Arizona (and counting) have passed laws that make it possible to create, sign and have witnessed and notarized an electronic document as your last will and testament (if you are a resident of that state). Tennessee has not, yet.

This sounds like progress. However, the process is not as easy as it sounds.

Traditionally wills have been printed and signed in the presence of two (2) disinterested witnesses and a notary. This act of executing the will normally occurs in an attorney’s office with the person signing the will (the testator), witnesses, notary and attorney all being present together at the same time. (Sometimes the most difficult part of the entire process is getting everyone together). The original wills are then kept safe until the testator dies and then the original document, not a copy, is submitted to the court for probate. It is a problem if the heirs cannot locate the original last will and testament.

The potential solution: The Uniform Electronic Wills Act. This “uniform act” is not a law, but a model that states may choose to adopt or modify. It was prepared and approved by a group of legal professionals that promote states having the same laws. The Uniform Electronic Wills Act attempts to streamline two parts of the process by: (1) allowing the testator and witnesses signatures to be notarized by an online notary; and (2) allowing the electronic document to be stored “electronically.” 

This act may the future of wills, but it is of little benefit and increases the risk of litigation right now. First, the witnesses and the testator still must be in the same location at the same time. Second, the testator must use and pay an online notary which requires an audio-visual connection between everyone. And third, the testator still has the issue of how to store the e-will document so that their heirs can access it when something should happen.  

Many clients want to have the convenience of e-wills and to be able to easily prepare online wills themselves. And in the future, probably in your lifetime, a person will be able to create and execute a will without leaving the comfort of their home, without the need for paper or any witness present in-person. (Of course, this may be done already by a handwritten or holographic will, but such a will creates even more uncertainty and risk that your wishes will not be followed.) The testator of the future may create their will online and have their mental capacity and intent and e-signature verified without another person around. And the will may then be stored online and accessible to their executor when they die without there ever being a “hard copy.”

But the laws have yet to catch up with this desire for convenience and many issues will not be settled until courts litigate will contests in states that adopt these new laws. Right now, the assumption is that online and electronic wills, prepared without a lawyer, are more likely to result in cases of undue influence and/or the creation of fraudulent documents.

Your next last will may be an E-will, but your current last will and testament should be an old-fashioned printed ink on paper document, witnessed live and in person.

Please contact us if you have any questions about your will or estate plan.