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By: Nathan Hannah
DeConcini McDonald Yetwin & Lacy, P.C.
Tucson, Arizona

You may have heard about a new law that says electronic wills are now valid in Arizona.  I’m not against the concept, but I am reluctant to bring it up now because the new law contains specific rules about the steps that have to be taken to make an electronic will valid, and those steps are not going to be easy to carry out.  Those rules include the following:

1. The will must be created and maintained in an electronic record.

2. The will must contain the electronic signature of the testator or the testator’s electronic signature made by some other individual in the testator’s conscious presence and by the testator’s direction.

3. The will must contain the electronic signatures of at least two persons, each of whom: (a) was physically present with the testator when the testator electronically signed the will, acknowledged the testator’s signature or acknowledged the will, and (b) electronically signed the will within a reasonable time after the person witnessed the testator signing the will, acknowledging the testator’s signature or acknowledging the will.

4. The will must state the date that the testator and each of the witnesses electronically signed the will.

5. The will must contain a copy of a government-issued identification card of the testator that was current at the time of execution of the will.

 

In addition to complying with the above rules, in order for an electronic will to be self-proved, meaning that the will can be admitted to probate without the testimony of the witnesses, an electronic will must also meet all of the following requirements:

1. The will must contain the electronic signature and electronic seal of a notary public.

2. The will must designate a qualified custodian to maintain custody of the electronic will.

3. Before being offered for probate or being reduced to a certified paper original, the will must be under the exclusive control of a qualified custodian at all times.

There are also specific steps that a person must take to become a qualified custodian of electronic wills.  Those steps are not impossible by any means, and there may be people who have already taken those steps, but I haven’t heard of any.  It’s clear that, until there are qualified custodians, you can’t make a valid electronic will.

I will come back to this subject, but the important thing to remember for now is this: this law does not mean that an electronic copy of your existing will is a valid replacement for the paper original.  If you need instructions, or are unsure, about how to maintain your existing will, I can help.

Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions.  He is also a noted blogger, and you can find more of his articles on his private blog,

Contact Attorney Hannah:   nhannah@dmyl.com  or  520/ 322-5000