E-Wills: Notarize your Documents Online.

Updated: Apr 18



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.

Self-proving Requirements:

Other legal considerations:

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.

(Colo. Rev. Stat. Ann. § 15-12-1508.)


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."

Qualifications:

Disqualifications:

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.

The procedure:

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.

RCW 11.12.430.


As always speak with an attorney before preparing your e-will!