In the old days, all legal documents had to be completed and signed on paper. Signatures always had to be done by hand. The finished document was printed out and filed in person in courthouses. However, as computers have made our lives easier, even the law has had to adapt. Today, lawyers draft legal documents online. Many jurisdictions, including the federal court system, now accept electronic signatures and allow lawyers to file documents electronically, without sending paper copies through the mail. Progress!
Of course, not all legally binding documents are able to be executed electronically. Some jurisdictions still require wills to be signed and witnessed by one or two people. However, according to the American Bar Association, many states have passed laws addressing the legality of electronic wills. “These state statutes typically define an electronic will as a will that is created and maintained in an electronic record. Electronic wills legislation also frequently addresses the ability for the testator’s electronic signature to be witnessed remotely or, when notarization is required, notarized remotely.”
FastWill can guide you through the process of creating an electronic will that is legally binding and recognized in your jurisdiction. Here are some general guidelines.
Jurisdictions Allowing Electronic Wills
The jurisdictions that currently allow some type of electronic wills include Arizona, Colorado, the District of Columbia, Florida, Illinois, Indiana, Maryland Nevada, North Dakota, Washington, and Utah. In these states, you can create an electronic will using FastWill.
The main difference between an e-will and a traditional will is that the e-will is made and signed electronically. Both kinds of wills must follow certain formalities, including the will being witnessed or notarized in accordance with the state’s requirements.
Some states follow the Uniform Electronic Wills Act of 2019. The UEWA is a model law that was drafted by the Uniform Law Commission to provide a legal framework for the creation, execution, and recognition of electronic wills. The UEWA was designed to address the growing use of electronic devices in modern society and to facilitate the creation of wills that are entirely electronic, including the signature and attestation process.
The UEWA has been adopted by Utah, Washington, North Dakota, and Colorado with other states considering its adoption. In states that adopt the UEWA, the law is modified to make an exception to the standard requirement that every will must be in writing. Let’s use Utah, the first state to pass UEWA, as an example.
Electronic Wills in Utah
In Utah, an electronic will is a record that is readable as text at the time of signing and is signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and in the physical or electronic presence of the testator by at least two individuals who witness the testator’s signing or acknowledgment of the will.
The person making the will and the witnesses are allowed to sign electronically. The witnesses can be physically present with the person making the will, or they can be in two different places but present through video-conferencing technology.
The UEWA doesn’t require the will itself to be notarized. However, the testator and witnesses must complete notarized affidavits attesting to the will. The state provides forms you can use and FastWill includes these same forms.
Other states adopting UEWA follow the same procedures.
Electronic Wills in Florida
Florida became one of the first states to enact electronic wills legislation. Its law is not modeled on the UEWA, but it became effective on July 1, 2020. In Florida, you must follow the following steps to make an e-will valid:
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You must be at least 18 or an emancipated minor who is in sound mind and capable of understanding that you are making a will disposing of your property.
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You must sign the will, but you can sign it electronically or use a digital signature.
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Two witnesses must sign the electronic will, but they can witness the signing using video-conferencing technology like Zoom. The two witnesses must watch the person sign the will and then provide their own signatures, which can be electronic or digital.
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The will process must be visually recorded and deposited with a records custodian.
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The will must be notarized.
Florida doesn’t require traditional paper wills to be notarized, but in order to create a valid e-will, the document must be notarized. You can use an online notary who can supervise the entire process and verify the identities of the testator and witnesses. Florida also requires e-wills to be deposited with a qualified custodian, such as a Florida-incorporated business or resident. The place receiving the will must have a system in place for storing electronic records.
Electronic Wills in Illinois
Like Florida, Illinois wrote its own law allowing electronic wills. The legislature passed a law in 2021 that authorizes wills and other testamentary estate planning instruments to be witnessed and notarized remotely using the appropriate video-conferencing technology. In Illinois, you must follow the following steps to make an e-will valid:
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The person making the will must still sign it and two witnesses must attest to the person’s signature. The will can be executed electronically and witnesses can attest remotely through video-conferencing.
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The witnesses must be able to determine and verify the testator’s identity. This means the person making the will should hold his or her ID card up to the camera so that the witnesses and notary can verify it.
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The witnesses should receive separate signature pages before the signing and the signature pages should contain a modified attestation clause.
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The document has to be maintained in a “tamper-evident electronic record” on an application that is capable of documenting any change made to the will.
In Illinois, the person who makes the will or any person who stores it is a records custodian charged with protecting the electronic will. Eventually, the Illinois court system will develop rules for how to file electronic wills, but for now, a person who creates the document, such as the testator or lawyer, is responsible for creating certified paper copies to be admitted in court proceedings.
How to Create an Electronic Will
To begin, you’ll need to verify your identity. This means providing a government-issued ID, such as a driver's license or passport, and answering security questions to confirm your identity.
The next step is to create your will using FastWill’s estate planning tool. You’ll need to include all the necessary elements, such as your name, the names of your beneficiaries, the assets you wish to distribute, and the executor of your estate.
It’s very important that you follow your jurisdiction’s rules for signing the will. Depending on the jurisdiction, you may need to sign your electronic will in the presence of witnesses or a notary public. Some states allow remote online notarization services.
After you’ve completed the will, you need to find a secure place to store it to make sure it is not lost, damaged, or tampered with. FastWill offers secure storage for your document. Alternatively, you can store it on your personal computer or in a secure cloud storage service.
You should also let your executor and beneficiaries know that you’ve made an electronic will and give them instructions on how to access it.
