Electronic Wills: State Legislation

To create a valid will, the testator generally must sign the will and, in most jurisdictions, the testator’s signature or acknowledgment of the will must be witnessed by one or more persons.

In recent years, as people increasingly conduct business virtually, several states have introduced or enacted legislation to address the electronic creation, execution, and storage of wills. These state statutes typically define an electronic will as a will that is created and maintained in an electronic record (for example, A.R.S. § 14-2518(A)(1); Ind. Code § 29-1-21-3(10)). Electronic wills legislation also frequently addresses the ability for the testator’s electronic signature to be witnessed remotely or, when notarization is required, notarized remotely.

The outline below indicates, for each jurisdiction that has statutes that authorize the use of electronic wills, whether that jurisdiction’s statutes:

• Allow for electronic signatures of wills.
• Allow for remote witnessing of wills.
• Allow for remote notarization of wills.
• Have procedures for electronic execution of self-proving affidavits.

Counsel should consult state law for additional execution requirements applicable to all wills and the more detailed requirements that may apply to execution of electronic wills. These requirements may include specific methods of authenticating the testator’s or witness’s identity and specific requirements for remote online notarization.

The courts in some states that have not passed electronic wills legislation have upheld electronic wills in certain circumstances (see for example In re Estate of Horton, 925 N.W.2d 207, 215 (Mich. Ct. App. 2018); In re Estate of Javier Castro, 2013 WL 12411558 (Ohio Com. Pl. June 19, 2013); Taylor v. Holt, 134 S.W.3d 830 (Tenn. Ct. App. 2003)). The outline below does not address individual state case law regarding electronic creation, execution, and storage of wills. The outline also does not address proposed electronic wills statutes that have not been enacted into law or that have been enacted but are not yet effective, including pending legislation in Virginia (HB 1856/SB 1435) and Idaho (S 1077), as well as Washington legislation (SB 5132) effective January 1, 2022.

Arizona

A.R.S. §§ 14-2518 to 14-2523 allow for the creation of electronic wills. Electronic wills can be created and stored in an electronic record (A.R.S. § 14-2518(A)(1)).

Electronic wills may be signed electronically by both the testator and the witnesses, but the witnesses must be physically present with the testator when the testator electronically signs the will (A.R.S. § 14-2518(A)(2), (3)).

In Arizona, wills do not need to be notarized to be effective. However, to be self-proved, a will (including an electronic will) must include a self-proving affidavit made before an officer authorized to administer oaths, such as a notary (A.R.S. § 14-2504).

Electronic wills may be self-proved if they also:

• Contain the electronic signature and seal of a notary public.
• Designate a qualified custodian to maintain custody.
• Are under the exclusive control of the qualified custodian before being offered for probate.

A.R.S. § 14-2519.

Arizona permits remote online notarization (A.R.S. §§ 41-371 to 41-380). These remote online notarization statutes are effective until June 30, 2022, when they are to be replaced  (2021 Ariz. Legis. Serv. Ch. 66 (S.B. 1115)).

Colorado

Colo. Rev. Stat. Ann. §§ 15-11-1301 to 15-11- 1311 (Colorado Uniform Electronic Wills Act) allow for the creation of electronic wills. Electronic wills must be in a record that is readable as text at the time of signing. A record may be electronic (Colo. Rev. Stat. Ann. §§ 15-11-1302(4) and 15-11-1305(1)(a)).

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 residents of a state and be 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.

Colo. Rev. Stat. Ann. § 15-11-1305(1)(c).

In Colorado, wills do not need to be notarized to be effective if they are witnessed. However, to be self-proved, an electronic will 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. § 15-11-1308.

A signature electronically affixed to a self-proving affidavit is valid (Colo. Rev. Stat. Ann. § 15-11-1308(4)).

District of Columbia

The District of Columbia Council passed temporary legislation allowing for electronic wills from March 11, 2020, to November 5, 2021. An electronic will is a will or codicil executed by electronic means (D.C. Code § 18-113(a)(3)).

Electronic wills may be signed electronically by both the testator and the witnesses (D.C. Code § 18-113(a)(5), (b)(1)(B)).

An electronic will must be witnessed by two witnesses who are either in the physical or electronic presence of the testator. At the time of signing, both witnesses must be physically located in the United States (D.C. Code § 18-113(a)(2), (b)(1)(B)).

Florida

Florida allows for the creation of electronic wills. Under the Florida legislation, an electronic will is a testamentary instrument executed by a testator with an electronic signature (§ 732.521(4), Fla. Stat.).

A witness may sign an electronic will with an electronic signature and may satisfy the presence requirement by means of audio-video technology (§ 732.522(1), (2), Fla. Stat.). For a will to be witnessed remotely, the principal must not be a vulnerable adult, the execution must be supervised by an online notary public, and the principal must:

• Answer certain questions about the principal’s physical and mental condition.
• Receive certain notices.

§ 117.285, Fla. Stat.

An electronic will can be made self-proved if:

• It contains an acknowledgment of the testator and witness affidavits that are made part of the electronic record containing the will or are attached to or logically associated with the will.
• It designates a qualified custodian.
• It is held in the custody of a qualified custodian at all times before being offered for probate.
• The qualified custodian certifies under oath that the electronic will was in the qualified custodian’s custody (in compliance with statute) and that it was not altered.

§ 732.523, Fla. Stat.

An electronic will may be made self-proved by electronic notarization by an online notary public (§ 733.201, Fla. Stat.).

Illinois

Illinois allows for the creation of electronic wills. Electronic wills are created and maintained as a tamper-evident electronic record and contain the signature of the testator and witnesses (755 ILCS 6/1-20 and 6/5-5).

The testator, anyone signing the electronic will on behalf of the testator, and the witnesses must be in each other’s presence when the signatures are made on the electronic will (755 ILCS 6/1-20).

The testator and witnesses are in each other’s presence if they are either:

• Present in the same physical location as another person.
• In a different physical location from another person, but able, using audio-video communication, to know the person is signing a document in real time.

755 ILCS 6/1-20.

When submitting an electronic will to probate in Illinois, the petitioner must state that the will:

• Is a tamper-evident electronic record.
• Has not been altered apart from:
  • electronic signatures
  •  information that arises in the normal course of communication, storage, display.

755 ILCS 6/20-5.

Indiana

Ind. Code §§ 29-1-21-1 to 29-1-21-18 allow for the creation of electronic wills. Electronic wills are created and stored in an electronic record and contain the electronic signature of the testator and witnesses (Ind. Code §§ 29-1-21-3(9), (10), and 29-1-21-4(a)).

The testator, anyone signing the electronic will on behalf of the testator, and the witnesses must be in each other’s presence when the electronic signatures are made on the electronic will (Ind. Code § 29-1-21-4(a)(1)).

The testator and witnesses are in each other’s presence if they are either:

• Present with each other in the same physical space.
• Able to interact with each other with the use of audiovisual technology by observing expressions of intent and the actions of executing the instrument.

Ind. Code § 29-1-21-3(14) to (17).

Electronic wills may be self-proved by incorporating a self-proving clause into the electronic record:

• When it is electronically signed.
• Before it is electronically finalized.

Ind. Code § 29-1-21-4(e), (f).

In Indiana, neither wills nor self-proving affidavits need to be notarized (Ind. Code § 29-1-21-4).

However, if the testator and witnesses are not in each other’s physical presence when the electronic signatures are affixed to the electronic will, the execution ceremony must be supervised by an attorney or directed (attorney-supervised) paralegal who must then, within a reasonable time after the will execution, sign an affidavit of compliance under penalties of perjury with specific statutorily required information regarding the will execution ceremony (Ind. Code § 29-1-21-4(b) and (c)). The affidavit of compliance must be included with an application to admit the electronic will to probate (Ind. Code § 29-1-21-4(d)).

There is pending legislation in Indiana to amend these electronic wills statutes (2021 IN H.B. 1255 (NS)).

Nevada

NRS 133.085 to 133.088 allow for the creation of electronic wills. Electronic wills are:

• Created and stored in an electronic record.
• Include the electronic signature of the testator and either:
  • an authentication characteristic;
  • the electronic signature of two witnesses; or
  • the electronic signature and seal of a notary.

NRS 133.085(1).

An authentication characteristic is a person’s characteristic that is both:

• Unique to that person.
• Capable of measurement and recognition in an electronic record as a biological aspect of or physical act performed by that person.

Examples include a fingerprint, retinal scan, voice recognition, facial recognition, video recording, digitized signature, or other commercially reasonable authentication using a unique characteristic of the person (NRS 133.085(5)(a)).

In Nevada, wills do not need to be notarized to be effective, but to be self-proved, a will must include either:

• The declarations of two witnesses as to the facts surrounding the due execution of the will under penalty of perjury.
• Self-proving affidavits attesting to the facts surrounding the due execution of the will made before an officer authorized to administer oaths, such as a notary.

NRS 133.050.

Electronic wills may be self-proved if:

• The witnesses’ declarations or affidavits are incorporated as part of, attached to, or logically associated with the electronic will.
• The electronic will designates a qualified custodian to maintain custody of the electronic record of the electronic will.
• The electronic will remains in the custody of a qualified custodian before being reduced to a certified paper original.

NRS 133.086(1).

A witness may witness the testator’s signature through audio-video communication (and any self-proving declaration or affidavit must be modified to indicate that fact) (NRS 133.050(4)).

A notary may notarize the electronic signature of a testator or witness even if the person is not in the physical presence of the electronic notary as long as the notary and the person can communicate with each other by means of audio-video communication (NRS 133.087 and 133.088).

North Dakota 

North Dakota enacted the Uniform Electronic Wills Act (N.D.C.C. §§ 30.1-37-01 to 30.1-37-07) effective August 1, 2021.

An electronic will is a will executed electronically that is:

• A record that is readable as text at the time of signing.
• Signed:
  • by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and
  • either by at least two individuals who witness the testator’s (or other individual at the direction of the testator) signing or acknowledgment of the will, or acknowledged by the testator before a notary public or other individual authorized to take acknowledgments.

N.D.C.C. §§ 30.1-37-01 and 30.1-37-04.

The testator and the witnesses may sign the will electronically (N.D.C.C. § 30.1-37-01(4)).

In North Dakota a will does not need to be notarized to be effective, but to be self-proved, the will must be acknowledged by the testator and include affidavits of the witnesses, all of which must be notarized using the form provided under North Dakota statute or a form similar to the statutory form (N.D.C.C. § 30.1-37-06). The North Dakota statutory form language refers to the will as an electronic will, and counsel should include this language on the acknowledgment and affidavits that are prepared with the will.

Utah

Utah enacted the Uniform Electronic Wills Act (Utah Code §§ 75-2-1401 to 75-2-1411) effective August 31, 2020.

An electronic will is:

• A record that is readable as text at the time of signing.
• Signed:
  • by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and
  • in the physical or electronic presence of the testator by at least two individuals who witness the testator’s signing or acknowledgment of the will.

Utah Code § 75-2-1405(1).

The testator and the witnesses may sign the will electronically (Utah Code §§ 75-2-1402(5)).

Witnesses may be physically or electronically present to attest to the testator’s signature (Utah Code § 75-2-1405(1)(c)). Electronic presence means that two or more individuals in different physical locations are communicating in real time as if the individuals were physically present in the same location (Utah Code § 75-2-1402(2)).

In Utah a will does not need to be notarized to be effective, but to be self-proved, the will must be acknowledged by the testator and include affidavits of the witnesses, all of which must be notarized using the form provided under Utah statute or a form similar to the statutory form (Utah Code §75-2-504(1)).

An electronic will may be notarized and self-proved electronically in substantially the same manner as a traditional paper will. Utah Code § 75-2-1408 includes form language that refers to the will as an electronic will and includes language indicating that it was executed by the witnesses in either the testator’s physical or electronic presence. Counsel should include this language on the acknowledgment and affidavits that are prepared with the will.