Electronic Wills and Digital Estate Planning: Still in the Concept Phase

September 29, 2017 | Dennis Wiley | Trusts, Estates & Taxation

For trust and estate attorneys, the big news this summer from Florida was not Hurricane Irma, but Governor Rick Scott’s veto of proposed legislation to legalize what are often called “electronic Wills.” These are Last Will and Testaments that are digitally created, signed and stored online or on a tablet, smart phone or similar electronic medium.

The purpose of the legislation was twofold. First, surveys have found that well over half of all Americans over the age of 50 don’t have a Will, or any other form of estate planning in place, in the event of death or incapacity.  Failing to plan ahead can cause significant family stress and be financially costly.  By further opening the door to online estate planning, the theory goes, presumably more people would take the time to do so.  Second, we live in an age of instant communication and paperless transactions. Digitization of documents is here to stay.

The benefits of electronic Wills are easy to recognize. With an iPad and some technical know-how, a person could memorialize his final wishes relatively quickly, whether in the comfort of his own home or stranded on a deserted island, and know that they’ll be given legal effect in the event of death.

But, as Governor Scott acknowledged in vetoing the legislation, there are very real concerns about safeguarding the creation of electronic estate planning documents from fraud or other financial exploitation. For example, how does one know if the person creating an electronic Will isn’t being manipulated or unduly pressured? If the witnesses are participating remotely by video conference, how can they tell if there isn’t someone else in the room feeding the testator instructions?

For now, there is no such thing as an electronic Will in New York, and only one state – Nevada – permits them. Change seems inevitable, however. This summer, the Uniform Law Commission, a non-partisan body that has been studying and providing states with model uniform legislation since 1892, formed a committee to draft proposed language governing the formation, validity and recognition of electronic wills, and to consider adopting any proposed changes to end-of-life planning documents such as advance medical directives or powers of attorney for healthcare or finance. At least one state bar (Colorado) has also formed a committee to separately study the issue and make its own recommendations.

Regardless if electronic Wills and virtual estate planning ever become reality, the most important part of any estate plan is the planning itself. In recent years, Google and online document providers have provided consumers with a tremendous amount of information at significantly reduced cost, but DIY planning has its limitations, and sometimes serious drawbacks. Consulting with an experienced trusts and estates attorney has been, and remains, the best way to successfully achieve one’s planning objectives.

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