The Uniform Electronic Wills Act (UEWA) in Washington State has brought significant changes to the law regarding wills, allowing for the creation, execution, and probate of electronic wills. This blog post will discuss the key aspects of the UEWA, including changes to the form of a valid will, requirements for executing wills, qualified custodians, and how simply having a will on a thumb drive in your dresser drawer is likely not sufficient for probate.
Changes to the Form of a Valid Will
The UEWA has amended the definition of "will" in RCW 11.02.005(24) to include electronic wills, making them valid for all purposes under Washington State law. This change allows testators to create and execute electronic wills, which can be stored and maintained digitally by Qualified Custodians.
Changes to Requirements for Executing Wills
The UEWA has introduced new requirements for executing electronic wills, including the use of electronic signatures and the presence of witnesses through video link. This change allows for greater flexibility in the execution process, making it easier for testators, witnesses, and attorneys to overcome challenges such as lack of mobility, illness, remoteness, or a pandemic.
Qualified Custodians and Changes to What Constitutes a Lost Will
The UEWA has introduced the role of a Qualified Custodian to maintain custody of an electronic will. Qualified custodians must be uninterested parties, and they are responsible for ensuring the electronic will is not altered in any way after it is executed. The Act also allows for the creation of certified paper copies of electronically signed wills, provided that such copies are certified as "true, complete, and correct copies" of the wills.
Having a Will on a Thumb Drive is Not Likely Sufficient for Probate
Although the UEWA allows for electronic wills, having a will stored on a thumb drive is not likely sufficient for probate. The Act requires that electronic wills be maintained by a qualified custodian, who must ensure the will is not altered in any way after it is executed. This requirement is in place to prevent unauthorized modifications to the will and to ensure its integrity throughout the testator's life.
The Uniform Electronic Wills Act has brought significant changes to the law of wills in Washington State, allowing for greater flexibility and accessibility in the creation and execution of wills. By understanding these changes and adhering to the new requirements, individuals can ensure their electronic wills are valid and legally enforceable.
As always, speak to an attorney before you draft your electronic will.
Washington State Embraces Electronic Wills in 2022
E-wills have become a hot topic in estate planning due to their convenience and accessibility for clients who cannot physically visit an attorney in person. This is particularly important for elderly clients with limited mobility or those who require emergency estate planning.
What are E-wills?
E-wills are legal documents that provide instructions on how to distribute your assets and property after you die. Similar to traditional paper wills, e-wills must be properly executed, signed, and witnessed. However, e-wills offer several advantages over traditional paper wills, including:
Convenience and accessibility for clients who cannot physically visit an attorney in person
The ability to simultaneously execute, attest, and make self-proving under RCW 11.12.450
The ability to execute counterparts that are considered a single document when testators and witnesses are in "the electronic presence of another"
The ability to store the e-will electronically with a qualified custodian
E-wills in Washington
Washington e-wills can be simultaneously executed, attested, and made self-proving under RCW 11.12.450. E-wills should be done using special software for notarization that is authorized by the State. These additional requirements can make it complicated and create difficulties for attorneys without prior audio-video experience.
The Role of Qualified Custodians
Under the new 2022 Washington law, the "qualified custodian" of an e-will must, within thirty days of receiving notice of the death of the testator, deliver the e-will to the court having jurisdiction or to the person named in the e-will as executor. Additionally, the qualified custodian must make an affidavit before any person authorized to administer oaths, stating the manner in which the qualified custodian received the e-will, that the e-will was at all times in the custody of the qualified custodian, and that the e-will in the possession of the qualified custodian has not been altered in any way since the custodian received the e-will (RCW 11.12.460).
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. This is sensible because a testator would not want to give an e-will to someone who can modify it and benefit once the estate has been probated.
Who May Qualify to Serve as a "Qualified Custodian"?
RCW 11.12.460 describes who may qualify to serve as a "qualified custodian" for an e-will. The Act prohibits the testator, the testator's spouse or partner, and interested parties from serving as qualified custodians.
Validity of E-wills from Other States
E-wills from other states are valid in Washington State so long as the will is in compliance with the jurisdiction where the testator is physically located when they sign their e-will. As with any legal matter, it is important to seek the guidance of an attorney before preparing your e-will. An attorney can help ensure that your will meets all legal requirements and is executed properly. Additionally, an attorney can advise you on any unique legal considerations that may affect your situation.
In summary, Washington State now allows for the creation and storage of electronic wills, also known as e-wills. These e-wills can be executed, attested, and made self-proving under RCW 11.12.450. To be valid, e-wills must comply with the procedures set forth in RCW 11.12.440, and they must be held by a qualified custodian. E-wills from other states are valid in Washington State so long as they comply with the laws of the state where the testator signed the will or was domiciled or resided at the time of signing or at the time of death.
E-wills can be a valuable tool for those who cannot access an attorney in person, especially elderly clients with limited mobility or those who need to make emergency estate planning decisions. However, it is important to keep in mind that there are additional requirements and potential complications when creating and storing e-wills. As always, it is best to seek the guidance of an attorney to ensure that your e-will is legally valid and properly executed.