What Are Electronic Wills?
Are E-Wills the future of estate planning? Plus: Creating a Will online vs. creating one with an attorney.
The future (and much of the present), whether you like it or not, is digital. But how does this play out in the often archaic world of estate planning, in particular when it comes to Wills?
The legal community has embraced many aspects of electronic signing and storage of legal documents. For example, in the field of real estate law, electronic signing has made the property sale process faster, less expensive, and more convenient. But can you use the convenience of digital technology to create your Will? Yes, you can… but only in a few states. The list is growing though (slowly, but it’s growing).
Is Creating A Will Online The Same As An Electronic Will?
You can go to LegalZoom, Nolo, RocketLawyer, FreeWill, and a plethora of other online legal document providers and have a completed Will in the next 20 minutes for a very reasonable price (and sometimes even free). But you’d have to print it out, get witnesses to sign it after you signed it (the witnesses are stating they witnessed you sign it of sound mind and your own accord), and keep that copy somewhere safe. If you needed to update it you’d have to return to the service, make changes, and do the whole signing process again. Plus, don’t forget to shred your old Will to avoid confusion.
An Electronic Will is completely digital. It’s all done online and remains online without the need for a paper copy. The same way so many of our physical documents have gone digital, this is doing it for Wills, a document known for always being on paper.
Now that's out of the way, we can move on to the next question.
What’s An Electronic Will?
It uses digital technology to write, sign, and save your Will, which will serve as the legal document that accounts for guardianship of a minor or special needs adult, and ensures your assets will be distributed according to your wishes upon your death. You still need to go through the proper procedures – such as having verified witnesses, etc. – but this can all be done through video, e-signature programs, and other means that remove the need for in-person interaction and a paper document.
Uniform formats are still being worked out, so check with your state to see if there is a standard or template already established (check our list below to find out if they’re legal in your state).
It requires the same information as a traditional paper Will. You’ll have to determine your beneficiaries, name an executor, and name a guardian if you have children or dependent adults.
What Are The Benefits Of An Electronic Will?
Convenience: Electronic signatures, electronic notarization, remote witnessing through video conferencing all harness the power of technology to legally confirm your Will without the need to leave your home. Who doesn’t want to save time and avoid leaving the comforts of your kitchen table or couch?
Emergency friendly: In a situation where it’s not physically possible to travel, due to various reasons including the COVID-19 pandemic, E-Wills can be a huge resource in tough situations.
Up-to-date versions: Digital records allow transparency of your Will and enable most recent changes to be validated. No more worries of finding a newer version of a Will stuffed in the back of a filing cabinet and throwing the family into chaos.
What Are The Risks Of An Electronic Will?
Risk of no in-person counsel: The benefit of more traditional Will creation involves in-person legal advice and guidance, which can be important depending upon your level of knowledge of estate law. Since E-Wills aren't pervasive at this point, there are some unknowns involved, as well as the threat of abuse or undue influence especially to older, non-tech savvy people. However, in practice, it should be no different than a virtual meeting, which we’ve all become accustomed to during the pandemic.
Cybersecurity threat: As with all personal and private information it’s imperative that Electronic Wills be protected with the highest level of security — including multi factor authentication and encryption — to ensure cyber attackers can’t ever access or alter it.
Is An Electronic Will Legal?
It depends. The list of states that allow Electronic Wills is short but growing:
- North Dakota
New York and Connecticut put executive orders in place during the pandemic to allow for temporary electronic notarization or execution of Wills.
Moving Ahead Toward The Wills Of The Future
The 2019 Electronic Wills Act provides a framework for creating, transferring, signing, and recording Wills in electronic form. (You can check their map to see if any progress has been made in your state.)
Legislation such as the Electronic Wills Act and the comfort many have felt transitioning to remote work are paving the way to make E-Wills more likely to become a ubiquitous option. However, when it comes to creating any legal documents, it’s important to understand the nuances of the laws in your state and be aware of your rights for counsel.
Online Wills vs. Creating A Will With An Attorney
Comfort level is an important factor when creating any type of Will, be it digital, online, or on paper with an attorney (which is probably also done in a digital template, but you get the point). Here’s a quick primer to help you figure out what might be best for you when creating your Will.
A Digital Will can be a simple solution If you have a simple estate. Some examples of a simple estate:
- If all your assets are going to the same place, or being divided equally among heirs.
- If you don’t need to name a guardian for minors or special needs adults.
- You need to name a guardian for minors or special needs adults and you know exactly who the primary and secondary guardian should be.
- You know exactly who should serve as your executor, which is the person who submits the Will to probate court and often must work with an attorney to settle your estate.
- If you don’t have many assets but still want to make sure they get to the right place (NOTE: While you might not have much cash on hand, any property you own counts as an asset and it can add up if you own a home, vehicles, jewelry, and other prized possessions.)
- If you created a Trust that accounts for the distribution of all your assets (and if you did this you probably already have a Will since a Trust is more advanced).
For people with a more complex estate, it’s often best to go the old fashioned route with an attorney since things can get extremely complicated after a death. Some examples of a complicated estate:
- You have a complicated or blended family dynamic where not everyone is on the same page.
- You need to name a primary/secondary guardian for minors or special needs adults (Guardian of the Person), but want to name someone else to manage the finances to support said minor/special needs adult (Guardian of the Estate).
- You own property or have assets in different states or countries.
- You have complex investments and other financial dealings (for example, if you owned part of a piece of property or business with someone else).
- You want to allocate assets to people or organizations that aren’t family, and don’t want your family to be able to successfully contest it.
- You set up a Trust with an estate attorney and they threw in a Will as part of an estate planning bundle.
We’re all about new technology, especially if it makes it easier for everyone to have a Will. With a well regulated and monitored system it stands to reason we’ll see more Electronic Wills being written and legally accepted in more states. We’ve seen time and time again that when technology allows convenience, technology wins.
That said, Wills have been around since ancient Greek and Roman times, and the legal industry and court system aren’t exactly nimble. Early adoption can be cool but it can also lead to possible issues. This isn’t a new gadget, it’s a legal document that could determine who raises your kids, cares for special needs adults, and gets all your worldly possessions. You need to make sure it’s done correctly so do a little research if you’re in one of the few states that allow Electronic Wills. Everyone else should try out an online solution (which is still relatively new and user-friendly), or book an appointment with an estate attorney, so you have something in place for your family right now.
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