Written By Shaheer Hashmi
Law is an ever-evolving field in how it is practiced and what it covers, and the time-tested process for estate planning is no different. Recently, Washington State announced that starting January 1st, 2022, wills may begin to be executed electronically through the upcoming Electronic Wills Act (EWA). What does that mean for you, as a client, and how do things change for the process?
How things currently work:
Currently, the Estate Planning process is rather straightforward. Much of the work can be done remotely, by mail, if a client is unable to visit their attorney’s office, however, one thing remains consistent no matter what method is utilized: any will made, to be valid, must be either physically notarized, witnessed by two individuals, or in some cases, both. Therefore, at the time of a “will signing”, the notary and the witnesses must be physically present.
The signed will is then be stored, either with the client, in a client storage box, or with the attorney, in order to keep the physical, signed copy safe and available for when it is needed. This will can be amended for the duration of the client’s life should things need changing, and will be re-signed or notarized, but a valid, physical copy will always be kept on file somewhere.
What is changing:
There are two fundamental ways wills are changing with the introduction of “electronic wills”: how they can be signed, and, how they can be stored. Currently, all wills must be signed physically and in-person, with witnesses or notary present, and whilst online copies of wills might exist, there must be a present physical version, the original, that can always be found or identified.
Going forward, with the EWA, wills can be signed online such as via DocuSign, with the caveat that when being witnessed, everyone is present online and in presence together, such as via a Zoom call, and that an official will may in fact be an online copy, such as a PDF, so long as it is retrievable.
What makes this interesting is that this also changes how physical wills can be signed, where the testator or testatrix and witnesses can be in different locations during the signing, again, so long as an “electronic presence” is maintained. This means that if a physical signing is witnessed electronically, the law will now allow for paper and electronic wills to be executed together and be seen as a single legitimate document.
How wills can now be stored:
As mentioned previously, current wills require that the official signed version be kept safe somewhere, whether it’s with the client, in a safety deposit box, or with their attorney, and having this physical copy maintained somewhere safe is integral. The original signed will must always be accessible and retrievable. However, with the advent of electronic will signing and electronic wills, this naturally changes.
Like physical wills, electronic wills need to be continuously maintained by a qualified custodian once the will has been executed. However, under the EWA, if an online will is not maintained by a qualified custodian at all times once it has been executed, the will would be treated as lost or destroyed, under section 11.20.070 of the RCW. This isn’t entirely different than a physical will, however, it specifies and reiterates that, for the will to ever be deemed valid in probate, there are a set of standards for how an electronic will is maintained.
A qualified custodian per the EWA is any legal adult who is a Washington resident at the time the will is signed, a Washington trust company or authorized national bank, or a will repository in the county of the testator’s residence, to name a few.
The EWA is simply expanding on existing methods and laws to make the act of estate planning more accessible and versatile, to suit the different needs of people. Having work done by an attorney remotely is more accessible too for clients who cannot travel, or do not live near many estate planning attorneys, or simply live far from their law firm of choice. Though more questions may arise because of the EWA coming into effect on January 1st, 2022, this is a process that attorneys everywhere will be anticipating and learning how to integrate, to best improve accessibility for clients across the state.
As with the entire estate planning process, discussing these things with an experienced estate planning attorney will help clear up the picture, and guarantee that how you complete and store your will is done legally, correctly, and in the manner best for you.