A traditional will is a paper document that outlines a person’s final wish to distribute their assets. However, in today’s digital age, electronic wills are a modern alternative to this paper-based approach. Currently, Washington state is one of the few states that recognize the legality of a digital will; and Harbor Law Firm is one of the few that specializes in creating electronic wills.
Our goal at Harbor Law Firm is to make estate planning as easy as possible for our clients. That’s why, even before Washington state passed the Uniform Electronic Wills Act (UEWA), we were busy studying electronic wills to understand their advantages and disadvantages and discover how they could help us create a fully remote estate planning process.
The following article details many aspects of electronic wills, including creating them and how to store them. Please know that if you select Harbor Law Firm for your estate planning needs and are interested in an electronic will, we will take care of everything for you, such as ensuring that your digital will is legally valid and securely storing the original copy of the electronic document.
Understanding electronic wills
An electronic will, also known as an e-will, allows property and assets to pass to the people and institutions you want to provide for after your passing. The electronic document is created while someone is alive and only valid once they die. To execute a valid digital will in Washington state, a person must be at least 18 years old and have the mental capacity to implement legal documents.
On Jan. 1, 2022, Washington state adopted the UEWA. The new digital will law made electronic wills legal in the state and outlined the rules around their creation and implementation. As of August 2023, Washington is among only 12 states, one district, and one territory to legalize digital wills, including:
- North Dakota
- Washington, D.C.
- S. Virgin Islands
Other states are warming to the notion of electronic estate planning documents (for example, most states have legalized remote notarization, although some do not allow it for estate planning). Only two states, New Hampshire and Oregon, expressly prohibit electronic wills.
In Washington state, digital wills need to be witnessed by two people and signed in the presence of a notary public. However, this exchange can now occur in the “electronic presence” of all parties, such as a videoconference. The UEWA also changed what it means to “sign” a will. According to the UEWA, signing means to “authenticate or adopt a record, to affix to or logically associate with the record an electronic symbol, an electronic sound, or process” as opposed to a physical (also known as a “wet”) signature. For example, a legal signature on an electronic will includes someone typing their name or using a digital signature.
What to put in a will
Electronic wills fulfill the same role as a written Last Will and Testament, including:
- Distributing assets to people, charities, organizations, etc., detailing who gets what and how much, including bank accounts, investments, and cherished possessions (any legal document with a designated beneficiary, such as life insurance policies, retirement accounts, and some financial assets, cannot be included in an electronic will).
- Transferring property.
- Naming a personal representative who helps ensure the estate’s assets go to the designated recipients.
- Appointing a successor guardian to care for minor children (it is also possible to name someone to care for pets).
- Holding a testamentary trust, which is a specific type of trust that only comes into existence once someone dies.
How to protect an electronic will
According to the Washington state UEWA, a “qualified custodian” must maintain an electronic will. The UEWA clearly states what parties can fulfill the role of qualified custodian:
- Any Washington state resident who is older than 18 when the electronic will is signed.
- An authorized trust company.
- A nonprofit corporation, if permitted by the articles of incorporation or bylaws of that corporation.
- Any professional service corporations, professional limited liability companies, or limited liability partnerships duly organized under the laws of Washington state and whose shareholders, members, or partners, respectively, are exclusively attorneys (for example, a law firm).
- A will repository in the testator’s county.
According to the UEWA, the following parties are disqualified from serving as a qualified custodian:
- An heir, beneficiary, or anyone with an interest in the testator’s estate.
- Persons of unsound mind.
- Anyone convicted of a felony or a crime involving moral turpitude (generally, moral turpitude is associated with offenses involving dishonesty, fraud, deceit, or intentional harm to others).
- Corporations, limited liability companies, and limited liability partnerships, except those noted above.
When you create an electronic will with Harbor Law Firm, you can use our firm as your qualified custodian. If you elect to do so, an electronic copy will be sent home with you, and we will securely store the original.
When selecting a qualified custodian, ensure they have security measures in place to protect against tampering and unauthorized access. For example, robust encryption methods help to ensure that only authorized individuals with the decryption key can access and read the document. Also, make sure that the qualified custodian you select has a plan to regularly update their firewalls and antivirus software to protect against malicious attacks and any malware that could compromise the security of an electronic will.
A qualified custodian should also have a backup system to protect against data loss or accidental deletion. Cloud storage is a good option, but it needs to be offered by a reputable provider with strong security measures and data redundancy. A digital vault designed explicitly for secure document storage often employs robust encryption and access controls. Finally, it’s always advisable to keep a copy of your will (either physical or digital) in a secure location, such as a safe deposit box or a safe that is fireproof and waterproof.
A reliable password management system can help to securely store and manage your login credentials to ensure solid and unique passwords and minimize the risk of unauthorized access. Also, if you or your qualified custodian ever need to transmit a digital copy (or the original version) of your will, use a secure network, such as encrypted Wi-Fi or a virtual private network (VPN). Avoid using public or unsecured networks because it leaves your sensitive information vulnerable.
Consider allowing certain people to access your electronic will. Some suggestions include:
- Personal representative: this individual will need the location, login credentials, and access instructions to retrieve and manage your electronic will.
- Trusted family members or friends: these individuals may need instructions on how to access the e will in case your personal representative is unable to or becomes incapacitated.
Advantages of electronic wills
One of the primary advantages of electronic wills is the convenience they offer. Traditional wills require physical documentation, which can sometimes need more effort to create, store, and update. Digital wills, on the other hand, allow individuals to draft, edit, and sign their wills electronically. This process can be completed from the comfort of one’s home, eliminating the need for multiple in-person visits to attorneys or notaries. Creating a digital will at your leisure provides flexibility that traditional wills cannot match.
No geographical limitations
Electronic wills also improve accessibility to estate planning by overcoming geographical limitations and eliminating the need for physical storage. Traditional wills often require individuals to be physically present at specific locations at specific times (typically during the workday), such as attorney’s offices or courthouses, to execute and update their wills. In contrast, e-wills can be accessed and updated remotely, allowing individuals to create their documents from anywhere with an internet connection. This accessibility is particularly beneficial for individuals who are physically unable to travel or live in remote areas, ensuring that they can still engage in estate planning.
Remote witnessing and electronic notarization
An electronic will also makes life easy for anyone who agreed to be a witness on the document. It is a Washington state requirement for wills to have the signature of two witnesses. With a digital will, the witnesses can sign the document in a videoconference session by typing their names. Additionally, the notary public can perform their duties remotely. Harbor Law Group is partnered with a notary public certified in electronic notarization to ensure that creating your digital will goes as smoothly as possible for our clients.
Enhanced security measures
While security concerns may arise with any electronic document, e-wills offer enhanced security measures compared to their traditional counterparts. Encryption techniques and multi-factor authentication can protect the integrity and confidentiality of electronic wills. These measures can prevent tampering, unauthorized access, and the loss of physical documents. Additionally, electronic wills stored in secure online platforms or with trusted third-party providers may offer data backup and recovery options, mitigating the risk of a lost will due to unforeseen events.
Potential disadvantages of electronic wills
Despite the enhanced security measures mentioned above, many people still have concerns about an electronic will’s vulnerability to security risks. The electronic storage and transmission of sensitive personal information and asset details may look like a potential opportunity for operators acting in bad faith.
However, Washington state has addressed these security risk concerns by instituting the qualified custodian rule, which no other state implemented. The committee that approved the UEWA believed that a disinterested third party provided an essential barrier against potential fraud.
Electronic wills rely heavily on technology, posing challenges for specific individuals. Older individuals or those from disadvantaged backgrounds may face technological barriers, such as limited access to the internet, lack of digital literacy, or unfamiliarity with electronic platforms, that may hinder their adoption of e-wills. Solutions that bridge the digital divide and provide equitable access to electronic media and education are essential to overcome these technological barriers.
Moving out of state (potentially)
Someone considering a move from a state with legalized electronic wills to a state where digital wills are not yet legal should consider all options. It’s is unclear if the new state will accept the electronic will. Electronic wills are so new we’re not sure this scenario has happened yet.
Fortunately, every state has a “catch-all” statute that effectively says if a will was validly executed in a previous state, it is valid in the new state (the U.S. Constitution requires states to give “full faith and credit” to the laws of other states). So, many practitioners believe that states would (and should) honor a validly executed electronic will. However, there is no current guarantee.
The future of electronic wills
During the Covid-19 pandemic, the world turned to technology to work and communicate efficiently. The unique pressures of that moment proved that remote applications were not only possible but also efficient and effective. Many institutions, such as state governments wary of remote estate planning possibilities, realized the potential of digital wills and other remote options. Currently, electronic wills are only legal in a few states. However, as the successful applications of those digital documents catch on, more states will adopt the format. Additionally, new technologies will continue to enhance the security and efficiency of electronic wills, and the continued adoption of new technologies should spur further advancements.
Interoperability and data sharing
As more states approve using electronic wills, there will be increased efforts to establish interoperability and standardization among digital will platforms. The eventual goal is for attorneys, executors, and beneficiaries to easily access and manage electronic wills, regardless of the medium used. This will enable and facilitate seamless data sharing and transmission, making probate much less cumbersome.
You may see banner ads online promoting “different wills” and “easy online wills.” It’s important to note that electronic wills are different from a DIY will you create online. Those services likely create a traditional will that you print and sign.
However, we firmly believe that a Last Will and Testament and other power of attorney documents are too important to trust to a series of clicks on a website. Even if you believe you have an uncomplicated estate (and it’s likely more complex than you think), it is too easy to make a simple mistake that can cost you and your heirs time and money. Understanding the legal framework in your jurisdiction is crucial to ensure the enforceability of a will or any other legal document. We understand if you’re skeptical of this advice coming from us (after all, creating wills is a service we provide), but there are many horror stories of DIY legal documents gone wrong. Please do more research before making an electronic will online or attempting any DIY legal document.
So, will electronics become the future of estate planning? Well, at Harbor Law Firm, we’ve made electronic wills and remote estate planning the now of estate planning.
If you’d like to learn more about electronic wills and other estate planning options, please reach out to Harbor Law Firm. We make the estate planning process as simple and stress-free as possible. Along the way, we’ll answer any questions you may have, such as “What is the difference between a living trust vs will?”
Our services include the following:
- Knowledgeable guidance customized to your specific circumstances and goals.
- A fully remote process that never requires you to leave home.
- Hours to fit your schedule.
- An adaptable process for exchanging documents and collaborating.
- Flat-rate pricing, so you’ll never be surprised by a legal bill.
We also offer a free consultation and can speak with you outside regular business hours. For more on our remote estate planning process, visit this page.
Our proven process defines precisely what you can expect, and our focus is always on your goals. Please fill out this form to schedule your free consultation.