In January 2022, Washington State began allowing electronic wills (e-wills), which are wills made and stored in electronic format.
Colorado has already passed an act for electronic wills, which permits wills to be signed, witnessed, and notarized electronically. (Colo. Rev. Stat. Ann. §15-12-1505(1).)
Under the Colorado Act, electronic wills in Colorado may be either:
Signed or acknowledged in the physical or electronic presence of the testator by two witnesses. The witnesses must be:
United States residents; and
physically located in the United States at the time of signing and within a reasonable time after witnessing.
Acknowledged by the testator in the physical or electronic presence of a Colorado notary public, who is located in Colorado at the time will is notarized.
Similarly, Washington e-wills can be simultaneously executed, attested, and made self-proving under RCW 11.12.450.
(a) The affidavits of the attesting witnesses are affixed to or logically associated with the electronic will; and
(b) The qualified custodian maintains custody of the electronic will at all times following execution by the testator and witnesses (Emphasis added).
Other legal considerations:
(2) The affidavits under subsection (1)(a) of this section must state such facts as the attesting witnesses would be required to testify to in court to prove such electronic will, and must be:
(a) Made before an officer authorized to administer oaths or, if fewer than two attesting witnesses are physically present in the same location as the testator at the time of signing under RCW 11.12.440(1)(b), before an officer authorized under RCW 42.45.280 ("Electronic records notary public"); and
(b) Evidenced by the officer's certificate under official seal affixed to or logically associated with the electronic will (Emphasis added).
It is important for clients who do not have access to an attorney in person, especially elderly clients with limited mobility and in the case of emergency estate planning, to be able to execute their wills remotely. There are additional requirements, however, which may complicate the process, and may create difficulties for counsel without prior audio-video experience.
(Colo. Rev. Stat. Ann. § 15-12-1505(1)(c).) Further, in Colorado to be self-proved, an electronic will in Colorado must include a self-proving affidavit that is made in either:
The physical presence of an officer authorized to administer oaths under the law of the state in which the testator signs, if witnesses are physically present with the testator at the time of signing.
The electronic presence of a notary public or other individual who is authorized by Colorado law to notarize records, and who is located in Colorado at the time the notarial act is performed, if two attesting witnesses are not present at the time of signing.
The new 2022 Washington law requires that the “qualified custodian” of an electronic will must, within thirty days of receiving notice of the death of the testator:
(a) Deliver said electronic will to the court having jurisdiction or to the person named in the electronic will as executor; and
(b) Make an affidavit before any person authorized to administer oaths, stating (i) the manner in which the qualified custodian received the electronic will; (ii) that the electronic will was at all times in the custody of the qualified custodian; and (iii) that the electronic will in the possession of the qualified custodian has not been altered in any way since the custodian received the electronic will (Emphasis added).
RCW 11.12.460 describes who may qualify to serve as a "qualified custodian."
(a) Any suitable person over the age of 18 years, who is a resident of the state of Washington at the time the electronic will was signed;
(b) A trust company regularly organized under the laws of this state and national banks when authorized to do so;
(c) A nonprofit corporation, if the articles of incorporation or bylaws of that corporation permit the action and if the corporation is in compliance with all applicable provisions of Title 24 RCW;
(d) Any professional service corporations, professional limited liability companies, or limited liability partnerships, that are duly organized under the laws of this state and whose shareholders, members, or partners, respectively, are exclusively attorneys; and
(e) A will repository in the county in which the testator is domiciled (Emphasis added).
(a) Minors, persons of unsound mind, or persons who have been convicted of (i) any felony or (ii) any crime involving moral turpitude;
(b) An individual who is an heir, beneficiary, or otherwise has an in [the] testator's estate; and
(c) Corporations, limited liability companies, limited liability partnerships, except as provided in subsection (1) of this section.
The Act prohibits interested parties, such as an heir, beneficiary, or anyone with an interest in the estate of the testator, from serving as qualified custodians. It would seem sensible to limit access to an electronic document to someone who can modify it as well as benefit once the estate has been probated, as a testator would not want to give that document to someone who can also benefit once the estate has been probated.
Can my spouse be my custodian?
Historically, a testator or the testator's spouse or partner has been responsible for their own physical will. As such, a testator or their spouse would not likely be eligible to be the custodians of their own electronic wills, since they typically hold a serious property interest in not only their own but also each other's wills.
e-Wills held by non-qualified custodians are treated the same as a lost or destroyed will. Luckily, a court can take evidence of the execution and validity of a e-will and deem it valid. However, the default treatment here can potentially prolong and increase the cost of a probate without the testator and their family being aware of it.
What if I cannot physically get to a notary or the witnesses?
The Act provides that witnesses and testators who are in "the electronic presence of another" are permitted to execute counterparts that are considered a single document. In effect, the entire will may be executed through an online meeting platform. When a testator is quarantined or in another secure location and cannot be physically present with witnesses or an attorney, for example, the parties can now execute the will and witness affidavits separately, and then the records can be collected and merged by an authorized electronic will custodian.
RCW 11.12.440 gives a limited set of procedures for e-wills.
(1) Subject to RCW 11.12.450(4), an electronic will must be:
(a) A record that is readable as text at the time of signing under (b) of this subsection;
(b) Signed by:
(i) The testator; or
(ii) Another individual in the testator's name, in the testator's physical presence, and by the testator's direction; and
(c) Signed in the physical or electronic presence of the testator and at the testator's direction or request by at least two competent witnesses after:
(i) The signing of the will under (b) of this subsection; or
(ii) The testator's acknowledgment of the signing of the will under (b) of this subsection or acknowledgment of the will.
(2) Intent of a testator that the record under subsection (1)(a) of this section be the testator's electronic will may be established by extrinsic evidence (Emphasis added).
e-Wills from other states are valid in Washington State so long as the will is in compliance with jurisdiction where the testator is:
(1) Physically located when the will is signed; or
(2) Domiciled or resides when the will is signed or when the testator dies.
As always speak with an attorney before preparing your e-will!