EWill Legislation: Where We Stand and What Lies Ahead
EWills are on the rise, making estate planning more accessible and convenient than ever. Learn about the current landscape of eWill legislation and what lies ahead.
This is an exciting time for the estate planning industry, as history is in the making. The COVID-19 pandemic served as a catalyst that enabled technologies that were already in need. States began to recognize eWills (digitally or electronically created Wills) that were witnessed and/or notarized using digital signatures and videoconferencing technology. Now, several states have adopted new laws that allow eWills recognized as legally valid permanently, and not just during an emergency. There are several states that have introduced new eWill bills just this year. Trust & Will examines where we stand and what lies ahead for eWill legislation, including trends, predictions, and opportunities in the estate planning industry.
Understanding the current landscape of eWill legislation
Just one generation ago, any legal document you could think of had to be printed on paper and was stored in its physical form. In this digital age, technological tools such as digital signatures, videoconferencing, cloud storage, and even remote notarization have made electronic documentation possible.
However, just because the technology exists does not necessarily mean that the use of digital legal documents has proliferated.
Electronic Wills, or eWills, are a prime example of a type of legal document that is currently in the process of adoption in the U.S. An eWill is a Last Will and Testament document that has been created online from start to finish, and it may even be stored electronically without ever needing to be printed onto paper. Various technologies such as digital signatures, remote witnessing and notarization through videoconferencing have made this possible.
However, while technology has allowed eWills to be possible in theory, laws still need to change in order to recognize these digital documents as legally valid. In order to make this happen, states need to adopt new legislation that allows for a digitally-created document, digital signatures, remote witnessing, and remote notarization if required.
States enabling eWills: a closer look
As of July 2023, there are 14 U.S. states, plus the District of Columbia and the U.S. Virgin Islands, that are allowing Testators to create electronic Wills, or e-Wills, that never have to be printed on paper. There were 10 states last year, so legislative changes are on the move.
In 2019, the Uniform Law Commission introduced the Electronic Wills Act, which has been adopted by and introduced to a number of states. Other states have enacted their own various versions of eWill legislation.
Here are the states and regions that have enabled eWills thus far (as of July 2023):
Arizona
Florida
Illinois
Indiana
Maryland
Nevada
Ohio
Virginia
Idaho
Minnesota
Colorado
North Dakota
Washington
Utah
Washington, District of Columbia
U.S. Virgin Islands
Future prospects for eWill legislation: trends and predictions
While several states have adopted electronic Will legislation thus far, we expect expanded adoption in future years. As technology continues to advance and becomes more widely accepted, more states will likely adopt some version of electronic Will legislation. According to the Uniform Law Commission (ULC), the states of Missouri, New Jersey, and Texas have all introduced bills this year.
Increasing efforts to create uniform laws regarding eWills will also likely take place in the future. Currently, states have autonomy over their electronic Wills legislature, meaning they may create their own or adopt the code created by the ULC. States who choose the latter option may make their own modifications. However, this creates confusion across states. Uniform laws across the U.S. will provide consistency and clarity across jurisdictions and will make it easier for individuals and legal professionals to navigate the eWills landscape. To make this possible, future legislation may work towards developing interoperability standards. This would enable the seamless sharing and verification of eWills between states.
It is also interesting to predict how the future prospects for eWills and artificial intelligence (AI) might intersect. AI technology is increasingly sophisticated, so there may be some explorations on how to integrate AI into the process of creating Wills or any other type of estate planning document, for that matter. For example, an AI assistant could help an individual with document preparation, checking for legal compliance, and streamlining the creation of eWills overall.
Challenges and opportunities in widening eWill acceptance
Thus far, you may be wondering why eWills are just now beginning to be adopted into state legislatures. The technology to produce an eWill has been possible for years, but due to the nature of creating a legal document, they were not practical to enter the market until states were ready to recognize them as legally valid.
A key challenge that has been identified is the question of security when it comes to creating a Will digitally. Wills are extremely sensitive as they contain highly personal and confidential information, therefore requiring the highest possible level of protection. Some lawmakers have been resistant to adopting eWill law due to a concern over security. (Although we’ve seen time and again cases in which paper Wills are left under couch cushions or in the freezer for anyone to discover.)
Here, there are some opportunities to facilitate the acceptance and recognition of eWills across states. Future legislation may evolve to include privacy and data protection measures for electronic Wills. This could involve advanced encryption methods or even biometric authentication to ensure the authenticity and integrity of documents. Blockchain technology may even be an option to help safeguard eWills that are stored digitally, to help prevent tampering.
As eWill acceptance begins to widen, we may even find more legal recognition across borders. More countries may recognize an eWill that was executed abroad, which can help simplify the estate planning process for individuals with cross border assets.
Last but not least, there is a large opportunity for public education and awareness. Many individuals still procrastinate on creating an estate plan because they are misinformed. They may believe that they don’t have enough assets to make it worth their effort, or aren’t informed about tools and services that are available to them. For instance, Trust & Will’s platform provides estate planning options that are affordable and convenient. Further, the platform provides a large library of resources to inform consumers on why estate planning is an important tool of empowerment for anyone, regardless of their level of income. There will likely be pushes for similar educational campaigns to help inform individuals about the benefits and implications of using eWills.
The impact of eWill legislation on estate planning industry
The widespread adoption of eWills could have several implications for the estate planning industry. As this technology becomes more widely accepted, the industry will likely experience significant changes and shifts in how estate planning is conducted.
Here are some potential impacts to consider:
Convenient & Accessible estate planning: eWills could make estate planning more accessible and convenient for a broader population. With the ability to create and execute Wills online, individuals may be more driven to engage in estate planning, especially younger generations who prefer digital-first services.
Faster Execution and Distribution: The digital nature of eWills can expedite the execution and distribution process. Eliminating the need for physical paperwork and handling may help accelerate the probate process, providing loved ones with faster access to their inheritances.
Evolving Legal Practices: The adoption of eWills may lead to changes in legal practices and requirements. Estate planning attorneys may need to adapt to electronic documentation, remote notarization procedures, and data security considerations to remain competitive in the digital landscape.
Security and Fraud Mitigation: Widespread eWill adoption may prompt the development of robust security measures to safeguard against fraud and unauthorized access to documents. This could involve using advanced encryption, biometric verification, and blockchain technology to enhance document authenticity and integrity.
New Legal Precedents: As eWills introduce new technological complexities, there may be an increase in legal disputes related to the validity, execution, or interpretation of electronic documents. Legal professionals may need to navigate emerging legal precedents specific to eWills.
Adoption by Financial Institutions: Financial institutions may begin accepting electronic documents more readily to facilitate the transfer of assets to beneficiaries. As eWill adoption grows, financial institutions may update their processes and policies to accommodate electronic documentation.
Of course, these are some preliminary ideas on how eWill legislation will impact the estate planning industry. There can and will be many others based on how events unfold and what impacts are made. However, we can confidently predict a trend where the proliferation of estate planning technologies will encourage lawmakers to adopt new legislation to enable these tools more quickly. This will allow the industry and its professionals to adapt to these technologies more readily.
EWill legislation improves access
The widespread adoption of eWills has the potential to transform the estate planning industry by streamlining processes, expanding access, and encouraging more individuals to engage in end-of-life planning.
Only about a third of American adults have an estate plan in place, so clearly there is a disconnect between this critical life planning activity with access and incentive. eWills stand to significantly improve upon this grave problem. Not only will the technology make estate planning more convenient, it can make it more accessible in terms of cost, physical location, and awareness.