Arizona’s Electronic Wills Law: What It Means

Arizona is trying to move into the 21st Century when it comes to signing Wills.  On May 16, Gov. Doug Ducey signed legislation that will allow Arizonans to create electronic Wills.  That doesn’t mean, though, that you can now type up a Will on your Smartphone and consider the job done.  For one thing, the law doesn’t take effect for more than a year — June 30, 2019.  For another, there are a lot of rules that make signing an electronic Will even more complicated than a regular one.

As you may know, the tried-and-true legal method of creating a Will is to put your intentions in writing and sign that written document in front of two witnesses and a notary.   (The notary is not required but is recommended.)  Once those steps are completed, you (or your attorney) has to safeguard the original document because the original is generally required by the Court.

The new law lets the “maker” of the Will, the required witnesses, and a notary sign with electronic signatures on a digital document.  But all those people generally still need to be in the same geographic location, which doesn’t simplify things all that much.  All the players need to be present.

Once an electronic Will is executed, the document also must be maintained electronically.  This is where things get a lot more complicated than old-fashioned paper Wills.  With those, you put them in the your safe or safety deposit box or the attorney’s vault, and there it sits till it is needed.  An electronic Will requires that it be in the continuous custody of a “qualified custodian.”

A “qualified custodian” must (1) not be related to the maker of the Will by blood, marriage, or adoption; (2) may not be a recipient under the Will or related to a recipient under the Will; and, (3) have the ability to store electronic records in a system that protects the document from destruction, alteration, or unauthorized access and that can detect any changes.

Arizona is not going to allow you to keep your own Will in your own computer, and your spouse or your kids can’t keep it either.

Even if maintained in an appropriate system, the electronic Will custodian must also include a photograph of the maker and the witnesses on the date of execution, copies of their identifying documents (driver’s licenses or passports, we assume), and a video recording of the signing.

There are additional practical requirements that could be a challenge for the qualified custodian:

• Must affirmatively execute a written statement agreeing to serve as the qualified custodian
• Cannot cease to serve as qualified custodian unless:
  • Provide at least 30-day notice to the maker of the Will along with a certified paper original of the Will (including all the supporting documentation)
  • Designate a successor qualified custodian and provide 30-day notice to the maker of the Will, give custody of the electronic Will (and accompanying documentation) along with an affidavit which addresses that the origin, date, and illustrates that the history of the custody of the electronic Will (if multiple custodians have been involved).
• The maker of the Will can designate a successor custodian in a separate writing (but must follow the same requirements as needed to execute the Will in the first place)

Most practitioners don’t typically have qualifying systems in place now, and opinions differ widely regarding whether videotaping signings is ever a good idea.  While signing electronically may be useful for people who have limited mobility and need an on-site signing, many attorneys regularly offer paper signings on site.  Plus, the use of an electronic Will only postpones the need for a written record of the Will until either a qualified custodian can no longer store or maintain the electronic record  or when admitting the Will to the Court for probate proceedings.

It is understandable that the legislature and governor wanted to create a more efficient and accessible method of executing a Will, and in time, something like this system may become the new normal.  But at least until next summer, we are all stuck with the tried-and-true method.  Besides, there’s something to be said for getting together for a formal “signing” at your attorney’s office.  It’s simple, it’s usually quick, and we like to see you!