The Washington Uniform Electronic Wills Act takes effect on January 1, 2022, allowing Washington residents to digitally execute wills for the first time in our state's history. Under previous Washington law, a Washington will had to be a paper document signed by the testator in the physical presence of two witnesses. As of January 2022, however, Washington law will allow wills to be executed electronically, thereby adding wills to the list of other legal and commercial transactions that may be carried out electronically. However, some of the rules can be confusing, so practitioners should be very careful.

Executing a Valid Electronic Will Under the New Act 

Currently a valid Washington will must be on paper. However, when this new law becomes effective next year, wills can instead be stored in an electronic medium, as long as it is readable as text and it is retrievable. Specifically, the law defines the document as “information that is inscribed on a tangible medium or that is stored in electronic or other medium and is retrievable in perceivable form.” In other words, the will can be in a Word or PDF format, or any other type of format that meets the definition in the law.

The electronic will still must be signed by the testator and two witnesses. But to “sign” an electronic will, the law doesn’t require the testator and witnesses to physically sign in the traditional way we sign wills today. Instead, the law allows the parties to “affix to or logically associate with” the will an “electronic symbol, an electronic sound, or process” with an “intent to authenticate” the will. This would include the more traditional ways we have grown accustomed to electronically signing documents, such as through DocuSign or by simply typing a name to the end of a document. But the law is written broadly enough with the hopes of not excluding new technological developments.

Finally, the witnesses and testator need not be in each other’s physical presence to properly execute an electronic will. Instead, they can be in “electronic presence” of each other, which is defined as when the witnesses and testator are in different locations, but are communicating in real time as if they were physically present with each other (e.g., a video call). Importantly, this portion of the law applies to both electronic and non-electronic wills. So now even with traditional will signings, the testator and witnesses can be in different locations. Also, the law now allows wills – both paper and electronic – to be executed in counterparts, which together will be considered a single document.

Self-Proving the Electronic Will

While executing a will properly is important, the process of self-proving a will is crucial. A “self-proving” will is a will for which the witnesses are not required to testify in court to the will’s validity later when the will is admitted to probate. A self-proving will is highly desirable, as it can be a significant burden to identify, locate, and obtain statements from witnesses when a will is admitted to probate many years later.

Fortunately, the new electronic wills law makes this easy. It provides specific language to include in an electronic will that satisfies the self-proving requirement. Traditionally, the signatures of the witnesses would be notarized, and the new law still allows this, but also contains a statement by the testator that is notarized. However, the law also allows you to ignore the notary requirement altogether and instead use Chapter 5.50 RCW, which allows for the use of unsworn declarations as long as you use the proper language. But again, the law makes this easy and provides specific language that satisfies the law’s requirements for unsworn statements.  

Custodian Requirement

The “qualified custodian” requirement of the new law, however, may be the most significant challenge. After an electronic will is signed by the testator and witnesses, the will must be maintained by a qualified custodian. This can include any person over the age of 18 who is a resident of the state of Washington at the time of the execution of the will. It can also include certain trust companies, nonprofit corporations, will repositories, and professional service organizations, such as law firms. It cannot include minors, persons of unsounds mind, felons, or any person interested in the testator’s estate, including any heir or beneficiary.

The law requires that this custodian maintain custody of the electronic will at all times after the will signing. If the qualified custodian has not maintained custody of the electronic will for all times leading up to when the will is admitted to probate, then the will is treated as being lost and destroyed. In such cases it can be admitted only if a party provides sufficient proof that the will represents the accurate will of the decedent. This requirement may present the biggest risk for the enforcement of an electronic will.

Are Electronic Wills the Future?

An electronic will can be an important option for a client cloistered in a hospital room or care facility during a pandemic. But beyond such unique circumstances, an electronic will should probably be used sparingly. A major question with the adoption of electronic wills in Washington will be how easy, or difficult, it will be for individuals to find a qualified custodian to maintain the will after it is signed. If the local courts adopt a streamlined way of storing and updating electronic wills, then perhaps the courts will provide a simple option for custodianship of the wills. The same might be true if qualifying law firms or individuals fill this role without hesitation. What seems clear, however, is that, accelerated by COVID-19, more and more facets of daily life are moving to electronic form. If these trends continue, then electronic wills may likely become more commonplace in Washington State.

Photo by JESHOOTS.COM on Unsplash