E-wills are coming. The ability to create, sign and store a will online is becoming a reality in some states. The Uniform Law Commission recently passed the Uniform Electronic Wills Act. This Act will serve as a model for other states who want to adopt this type of legislation. Some states have already dipped their toes into the realm of electronic wills. Nevada and Indiana have laws allowing electronic wills, and Florida and Arizona are considering such legislation. Undoubtedly, other states will follow suit.
Is an electronic will right for you? Here’s what you need to know.
Clients often ask about signing wills electronically. When it comes time to execute the will, they often ask, “Can’t we do this online?” or “Will you take an e-signature?” I try not to take it personally. Millennials find the process of executing a will practically medieval. They question the need to meet with an attorney in person. Most of their other tasks can be accomplished online, so why not this one. While we are past the days of wax seals, having to get something notarized still throws many people into a panic.
An electronic will allow a person to create and execute a will without leaving the comfort of home, and without the need for paper. In general, the process works like this – the user creates a will online and forwards it to an online notary who then has a video chat with the user. The notary asks the user some questions, notarizes the documents and sends it back. The will can then be stored online without a hard copy changing hands. It’s easy, but many lawyers are skeptical.
Probate litigators see the potential for an uptick of business in the future as a result of electronic wills, which leave a tremendous amount of room for undue influence and shenanigans when a lawyer isn’t present. My colleague, partner and probate litigator Lisa Cukier, says, “E-wills are certain to cause and fuel litigation on issues such as the testator’s lack of mental capacity to sign a will and the exercise of undue influence, duress and coercion in the signing of a will.”
Despite concerns from lawyers, e-wills are poised to become a reality in many states. There will be a market for it just like other online legal services. For young people with few assets, creating an e-will may be better than no will at all. However, if you are older, have significant assets or are looking to disinherit folks, an electronic will is not for you.
Older clients are especially susceptible to abuse and undue influence. I remember a home health care aid who used an online service to print a will, which she had the elderly woman she was caring for sign. Coincidently, all the elderly woman’s assets were left to the home health care aid.
If you have significant assets, you have more at stake. In general, the more assets you have, the more complicated your estate plan will be. It also means more people are likely to fight over your assets when you are gone. Plus, you want to make sure estate tax issues are taken care of. An online service is no replacement for proper legal and tax planning.
An e-will is also an open invitation for future litigation over your estate if you are looking to disinherit people. “These e-wills promise to make the orderly distribution of wealth an exercise in chaos,” adds Cukier. There is no replacement for an in-person meeting with an attorney and witnesses to sign a will.
With any online estate planning or financial tool such as e-wills or robo-advisors, if your situation is simple and you have minimum assets, the service may work for you. However, as things get more complicated and your wealth accumulates, you cannot replace face-to-face personalized service. The difficulty lies in being able to decipher the difference. Everyone thinks their situation is simple.
Most attorneys have war stories about the client who came in asking for a simple will and it turned out to be their most complicated situation ever. If you are not sure about the complexity of your situation, ask your other advisors such as your financial advisor and your accountant. If you do not have other advisors, you would be well advised to speak with one or more professionals to make sure you are on the right track.