Someday, Even Your Estate Plan Will Be Electronic

In today’s day and age, most transactions may be accomplished electronically.  However, there is still one field where old-fashioned pen and paper is typically still required: Trusts and Estates.  Given the sensitivity of estate planning documents, difficulties in authentication, and the potential for data loss or hacking, many people would be (rightfully) hesitant to create or store such documents electronically.  Despite these obstacles, interest in electronic wills and other estate planning documents has increased in recent years.

The Uniform Electronic Transactions Act (UETA) of 1999, setting forth nationwide rules for electronic transactions, has been adopted in 47 states (including Wisconsin) and the District of Columbia.  The Electronic Signatures in Global and National Commerce Act, passed by Congress in 2000, allows the use of electronic records and signatures in interstate commerce.  However, both Acts specifically exclude application to the creation and execution of wills, codicils, and testamentary trusts.

Currently, Nevada and Indiana are the only states to have enacted legislation explicitly authorizing electronic wills (although, electronic wills have been successfully admitted to probate in other jurisdictions under the harmless error doctrine).  Efforts to pass similar legislation in Florida, Arizona, New Hampshire, and Virginia have been unsuccessful.

In late 2017, the National Conference of Commissioners on Uniform State Laws (NCCUSL) formed a Committee for Electronic Wills.  According to the NCCUSL website, the Committee will “draft a uniform act or model law addressing the formation, validity and recognition of electronic wills.”  See http://www.uniformlaws.org/Committee.aspx?title=Electronic%20Wills.  In addition, the Committee will consider expanding its mission to address other estate planning documents, including advance medical directives and powers of attorney for health care and finance.

It will be years, or even decades, before electronic wills and other estate planning documents become commonplace, but the trend is clear: someday, even your estate plan will be electronic.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.