Earlier this year, Governor Jay Inslee signed into law Senate Bill 5132. Among various other changes to Washington trust and estate law, the Bill adopts the Uniform Electronic Wills Act (the “Act”), which allows Washingtonians to create valid digital Wills beginning January 1, 2022.
Virtual, Paperless, Will Signings
Currently a valid Washington Will must be executed on paper using a “wet” ink signature. The Will must be signed by the testator (the person making the Will) in the physical presence of two uninterested witnesses. However, beginning January 1, a testator (and witnesses) may use an “electronic symbol, sound, or process” to sign an electronic Will (e.g., DocuSign or a signature stamp in Adobe Acrobat). Witnesses need not be in the physical presence of the testator as long as they are in his or her “electronic presence” (e.g., on a video conference platform, like Zoom). The electronic Will can then be stored as a PDF, Word document, or other electronic form, as long as the Will is retrievable and readable in that form. The Act also allows for the creation of paper copies of electronically signed Wills, provided that such copies must be certified as “true, complete, and correct copies” of the Wills.
Electronic Will Storage
In order to prevent an electronic Will from being modified after it is executed, the Act introduces the role of the “qualified custodian” to store the electronic Will. The qualified custodian receives the electronic Will and maintains custody of it during the testator’s life. Within 30 days of learning of the testator’s death, the qualified custodian must then deliver the Will to either the Personal Representative named in the Will or the court with jurisdiction over the Will, along with an affidavit stating that it was in the qualified custodian’s custody at all times and has not been altered in any way. Any electronic Will which is not maintained by a qualified custodian is treated as lost or destroyed, meaning that the electronic Will is presumed invalid unless evidence is provided proving otherwise. It follows that entrusting the electronic Will to a qualified custodian is essential to ensuring it will be given effect.
A qualified custodian may be any Washington resident over the age of 18, a bank or trust company, a nonprofit corporation, a law firm, or the county repository. Perhaps more important than who can serve as a qualified custodian, is who cannot. Minors, those of unsound mind, felons, those convicted of crimes of moral turpitude, and heirs, beneficiaries, or persons interested in the testator’s estate, may not serve as qualified custodians. Interestingly, whereas a testator may normally retain a physical Will in the testator’s own records, or give a physical Will to his or her spouse or children for safe keeping, a qualified custodian of an electronic Will must be an uninterested party. This has led some to speculate that we could see the emergence of third-party services which offer to serve as the qualified custodian of an electronic Will in exchange for a fee.
The option for Washingtonians to execute Wills electronically is certainly a welcome update, specifically in light of the current pandemic, where visitors may be restricted from hospitals and nursing homes and arranging a physical Will signing has become increasingly difficult. That said, at the outset it may be difficult for testators to find willing and capable qualified custodians to store their electronic Wills, and qualified custodians have little guidance regarding how to do so. The Act states that the qualified custodian must maintain custody of the electronic Will at all times, without mention of whether that custody must be exclusive or, for example, whether an electronic Will stored on the cloud or in the custodian’s email inbox will satisfy the custody requirements. Finally, Washington is one of only four states which have adopted the Electronic Wills Act. Therefore, executors may face difficulty probating an electronic Will in other states. As a result, paper and pen will likely remain the preferred method of execution for most individuals, at least until such time as some of the kinks related to electronic Wills are ironed out.
If you have any questions regarding electronic Wills or any other aspects of your estate planning, please contact an attorney in our estate planning practice group, including Ryan L. Montgomery, Matthew J. Hart, or Allison Int-Hout.