Nearly half of baby boomers lack any sort of estate plan, despite the fact that most people agree it’s very important to have one. And among Americans aged 72 and older, nearly one in five still have no documents that provide directions regarding their assets. As we approach a $30 trillion wealth transfer from baby boomers to their children over the next few decades, estate plans have never been more important. So what’s causing the gap between knowing we need a will, and actually getting one -- and how will new laws address that?
Many people (incorrectly) assume that it isn’t a big deal not to have a will. But perhaps the biggest hurdle -- accessibility -- is something states are trying to solve with electronic wills, or E-wills. The Uniform Law Commission recently approved the Electronic Wills Act, providing an easy, affordable, and secure way to create an E-will. In the coming year, dozens of states may soon adopt a fully digital estate planning process that makes signing, notarizing, and storing extremely easy, and it’s expected to be rolled out nationwide in the coming years.
"E-wills" replace wet signatures with digital ones, use digital notaries, and allow for secure storage of fully executed legal documents online. It’s taken nearly 500 years to modernize the legal requirements to create a will--and it’s getting the same combination of applause and skepticism that college degree programs got when they went online.
States have already begun to embrace E-wills. Nevada, Indiana, Arizona, and Florida have passed laws authorizing E-wills. California, the District of Columbia, New Hampshire, Texas, and Virginia have considered legislation on E-wills, but have not yet adopted a law.
While there is momentum among the states in favor of E-wills, relying on each state to design its own laws could result in a patchwork of laws that vary from state to state. The Electronic Wills Act looks to build on this momentum in the states by offering a model law that could be adopted for a consistent and uniform approach nationwide.
How Are Electronic Wills Created?
While the adoption of E-wills is a monumental advancement in estate planning, the actual requirements of E-wills are not all that different from traditional paper wills. The Electronic Wills Act requires that E-wills be a text record that is signed by the person making the will and signed by two witnesses and/or a notary. The model law leaves flexibility for each state to decide whether to require witnesses, a notary, or both. Each state can also decide whether the witnesses and notary must be physically present or if remote or virtual presence is permitted.
It is expected that many states will allow for remote online notarization of E-wills. Remote online notarization and E-wills go hand-in-hand, each being a technological evolution from the traditional legal process. Led by providers such as Notarize.com, remote online notarization takes the conventional notary process and moves it entirely online. With a digitized document, the signer will show a photo ID and answer a few questions to verify their identity. The signer and the notary will connect by a live video feed where the notary will observe the signing and then complete the notarization.
Once signed, notarized, and witnessed (if required), the E-will is complete and valid. Although not required by the Electronic Wills Act, states may adopt procedures for storing E-wills with a qualified custodian. A qualified custodian provides a secure way to store an E-will online and a mechanism to convert the E-will into a paper document, if necessary.
What Does This Mean for Clients and Their Attorneys?
States will consider approving E-will laws and building standards around E-will services (e.g., regulations and vetting processes regarding who can offer this service). This will democratize the estate planning process and address the accessibility hurdle. For prices ranging from less than $100 to a few hundred dollars, users can create, sign, notarize, and store a complete will digitally, making it easier, more affordable, and more secure than ever.
This modernization has met some pushback, often based on misconceptions about how the new process works. This new law doesn’t mean people can’t still use an estate planning attorney or that digital will services are an individual’s only option. That’s particularly important for those with significant wealth or complicated estates who need more specialized guidance. E-wills will expand options to create a will. Current online services can cover as much as tens of millions in assets, and as little as “here’s where my pet should go.” There are also hybrid models that combine an online service with consultation and follow-up services from an attorney.
Arguably, the most important benefit of the model law is the increase in security and the reduction in financial elder abuse and fraud because E-wills require a more thorough identity verification process. Every change to a document will include a video-recorded conversation between the client and the notary, where the client must show a valid government ID. That exchange, along with all other updates, is then stored with the E-will, creating a level of transparency never seen before.
Location and security are additional benefits of E-wills. With traditional paper wills, losing the original signed document (which is more common than you might think) could make it impossible to carry out the instructions in the will. Finding the document could be tough. Is it in the garage? With the bank? At the office? With E-wills, it’s all accessible online. States can adopt security requirements to ensure that servicers maintain a rigorous level of protection so that E-wills are stored securely, safe from online thieves and other bad actors.
This sweeping change will bring a more human advantage as well, and for anyone who has lost a parent or had a client die without a will, this is important: E-wills make it easier to have a plan that helps loved ones after an individual’s death. They are an easier way to reduce the friction between family members who are struggling to navigate a complicated system.
We should ask challenging questions of technological innovation, but we should not discount the huge benefits it can bring. We’re watching this development closely, but we expect this to change the industry for the better. To learn more about what the new law requires and who is eligible, visit the Electronic Wills Act drafting committee’s documents here.
Patrick Hicks is general counsel of Trust & Will, a digital estate planning service on a mission to help everyone leave a lasting legacy.