I have been practicing estate planning for two and a half decades, and have not seen nor prepared an electronic last will and testament. However, the use of an electronic will, or e-will, in Nevada has been possible since 2001.
Long gone are the days of typewriters and carbon paper to create duplicate originals. Computers and word processing have certainly made preparing traditional wills more efficient. And is still the norm. However, as more and more of our lives move to the digital realm, is there a time in the not too distant future when digital estate planning documents will also be the norm.
In 2013, an Ohio court admitted a will to probate that was written and signed on a tablet computer. This may have been the first such will admitted by a court to probate.
The Nevada statute that allows for an electronic will is N.R.S. 133.085. There are several requirements that must be met in order for the e-will to be valid. Just as with a tradition paper will, the testator must be of sound mind and at least 18 years old. Additional requirements include:
- Must be written, created and stored as an electronic record;
- Is dated and contains the testator’s electronic signature;
- Includes at least one “authentication characteristic” of the testator;
- Is stored such that:
- Only one authoritative copy exists;
- The authoritative copy is maintained and controlled by either the testator or a person designated in the e-will by the testator to be the custodian of the authoritative copy;
- Any attempted alteration of the copy is readily identifiable; and
- Any copy of the authoritative copy is readily identifiable as a copy that is not the authoritative copy.
So what do these requirements mean? Creating the written document and storing it electronically is easy enough. We have word processors for that. What isn’t exactly clear is the requirement of an “electronic signature of the testator and which includes, without limitation, at least one authentication characteristic of the testator.” The statute allows for several methods of providing an “authentication characteristic,” including a finger print, retinal scan, voice recognition, etc. But the easiest may be a “digital signature.”
And “digital signature” is defined as a “graphical image of a handwritten signature” which is created and stored by electronic means. It seems that an electronic signature and a digital signature are the same thing. So the easiest way to create an electronic will would perhaps be on a tablet, just as was done in the Ohio case, on which the testator could sign his or her name with a stylus directly onto the e-will.
The more difficult part of creating the e-will may be to implement the security methods needed to ensure that there is only one “authoritative copy” being stored.
Nevertheless, an electronic will that meets all of the above requirements will be just as valid as if it had been formally executed in the traditional manner. It should be noted that the opportunity to create an e-will does not extend to trusts, except for a testamentary trust that is contained within the e-will.