Wills and Trusts Aren’t Yet Ready to Join the Digital Age

Most people these days use electronic media as their primary form of communication and record keeping, but there are some areas where paper records are still the norm where there is a need to preserve an original document that has legal effect. Wills and trusts fall under this category because the testator won’t be around to vouch for its authenticity. In order to provide a mechanism for testators to make valid wills, every state has enacted a wills statute that establishes the requirements for a valid will. If these requirements are met, then a probate court will accept the will and probate the estate according to the testator’s wishes.

These state laws almost uniformly require that a will be written, signed by the testator, notarized and witnessed to be valid. Nevada is the only state with a statutory provision specifically allowing electronic wills as valid. This law has been on the books for over ten years now and no other state has approved a similar statute, but why?

The biggest factor is authenticity. With a written will you have a record of the will ceremony that can be examined later to confirm the identity of the writer and the witnesses through the notary, testimony by the parties, and even handwriting analysis. Electronic documents don’t usually have any means to verify the identity of the author. Nevada sought to remedy this by requiring that electronic wills contain an “Authentication Characteristic” such as a fingerprint, retinal scan, voice recognition, etc. But that really doesn’t solve the issue here; will your family remember to scan your retina before you are buried?

Many of these same issues exist for electronic copies of a written will. Most states require a will to be original and will only accept a photocopy of a will following proceedings to establish that the original cannot be found and that the reproduction is a true copy of the original. Many states like Arizona require a non-witnessed will to include the material provisions and the testator’s signature in the testator’s own handwriting. A document that you type and sign or one that is never printed out is not going to suffice.

All of this is meant to convey that our state laws requiring a ceremony for the execution of the will are there to authenticate a will after you have died, and they do a very good job of it. Digital wills are not likely to supplant this role until we see significant changes to how authorship of digital documents can be reliably proven under a court’s evidentiary standards.

If you have questions about the validity of a will or you need to ensure that your own will can be accepted by probate court, then please contact an experienced estate planning attorney at Nielsen Law Group for help. You can schedule your initial consultation by calling (480) 888-7111 or submitting a web request here.