Electronic wills (e-wills) are wills made and stored in electronic format. An e-will is signed electronically, and in some cases can dispense with the traditional need for the will maker and witnesses to be physically present in the same room when signing.
As electronically signed documents become widely accepted, state laws are beginning to anticipate a future in which e-wills—currently rare—are acknowledged and accommodated as well. Below is an overview of how state laws currently treat e-wills.
To understand e-will laws, it’s necessary first to understand the requirements surrounding a traditional will. For a traditional will to be valid, the will maker must be an adult of sound mind, and the will must satisfy three requirements. It must be:
Almost all states require two witnesses, and most require that the witnesses be present to watch the will maker sign the will. Two states, Colorado and North Dakota, also allow notarization as an alternative to witnesses (in these states, the will maker may sign in front of a notary, rather than in front of witnesses).
Let’s return to the three components of a traditional will, and see how an e-will challenges these requirements:
Answers to these questions are not uniform, as you can see when looking at selected state laws, below.
A few states have ventured forward to explicitly allow e-wills in their statutes. Here is what the first states have done.
By far the earliest state to address e-wills, Nevada enacted legislation in 2001 and revised it substantially in 2017. The statute allows e-wills so long as they include at least one of the following:
The witnesses are considered to be “present” while the will maker signs even if they are using audio-visual communication. (Nev. Rev. Stat. § 133.088.) However, Nevada does not allow the e-will to be made self-proving unless it is stored with a “qualified custodian”—for which there are elaborate requirements. (Nev. Rev. Stat. §§ 133.300-340.)
Indiana’s e-will statute, which became effective in 2018, does not allow remote or virtual witnessing—it requires “actual” presence. On the other hand, Indiana’s statute is more accommodating than Nevada’s with respect to self-proving wills; e-wills can be made self-proving simply by incorporating a clause that is e-signed by the will maker and witnesses but does not have to be notarized. Indiana also does not require will makers to store their e-wills with a custodian. (Ind. Code Ann. § 29-1-21.)
In 2019, Arizona amended its wills statute to allow e-wills. Arizona also requires the will maker and witnesses to be physically present in the same location, and the e-will must also include a copy of the will maker’s government-issued ID. Like Nevada, the e-will can be made self-proving only if it is stored with a qualified custodian. (Ariz. Rev. Stat. §§ 14-2518 to 2523.)
Effective in 2020, Florida’s wills statute recognizes e-wills as valid. (Fla. Stat. § 732.521.) It also allows remote online witnessing and notarization of wills via real-time, two-way audio-video communication. Notably, Florida has built into its laws a protection for vulnerable adults. If remote witnessing is used, the will maker must answer questions about whether the will maker is under the influence of drugs or alcohol, has a long-term disability that impairs daily living, or requires assistance with daily care. If the will maker answers yes to any of the questions, then the will ceremony must stop, and remote online witnessing is not an available option. (Fla. Stat. § 117.285.) An e-will can be self-proving in Florida only if it meets several requirements surrounding a qualified custodian. (Fla. Stat. § 733.524.)
In 2019, the Uniform Laws Commission (a national organization of legal experts that drafts model laws) approved the Uniform Electronic Wills Act, discussed below. In late 2020, Utah became the first state to adopt a version of this model law. The Utah code allows for the “electronic” presence of witnesses, and also allows the e-will to be made self-proving without cumbersome rules surrounding custodianship. (Utah Code 75-2-1401.)
During the COVID-19 pandemic—which has given rise to circumstances that are ripe for remote witnessing—several states temporarily relaxed the witnessing requirements for wills as an emergency measure. To look up whether your state has done so, see The American College of Trust and Estate Counsel’s list of emergency remote notarization and witnessing orders. Because these authorizations are only temporary, it’s vital to check whether a particular order has expired.
More states are likely to adopt their own versions of the UEWA in the near future, so it’s helpful to know the model law’s take on e-wills. The UEWA requires an e-will to be “a record that is readable as text,” so for the moment it precludes audio and video wills unless they are transcribed and then signed by the will maker. The model law is also designed to allow states to decide for themselves whether to allow remote witnessing, so states will likely continue to vary on this point.
The UEWA allows e-wills to be made self-proving, but only at the time the will is signed. (Currently, in some states, traditional wills can be made self-proving by having witnesses sign the affidavit sometime after the will signing.) Notably absent are any rules surrounding custodianship or storage of the e-will.
In theory, it’s certainly possible to create an e-will today that is valid in the states mentioned above. But a few obstacles stand in the way of e-wills becoming commonplace, even in the states that already allow it. First, the requirements surrounding custodianship of the will—in states like Nevada, Arizona, and Florida—are rather elaborate, and there’s a lack of providers offering e-will storage that satisfies these requirements. Some critics have voiced concerns about what happens if an e-will storage facility shuts down.
Others have pointed to a lack of clarity surrounding what constitutes a revocation of an e-will (for example, whether you have revoked a will if you simply deleted it from your computer), the potential for fraudulent tampering with electronic wills, and the potential for undue influence when witnesses are not physically present and cannot see what’s happening off-screen.
While many lawyers might be reluctant to rely on the new statutes to create e-wills just yet, it’s clear that the laws have created more openings for wills created electronically or remotely witnessed, perhaps by necessity. In any event, the laws surrounding e-wills are quickly evolving, and e-wills are sure to become more common over time.