Electronic Wills in California

Posted by John B. Palley on Monday, March 23rd, 2020 in Probate Code

no Comment.

I was recently presented with a new probate situation that I have not seen before. Having done about 1,500 probate cases I have really seen just about every fact pattern there is… or so I thought. The new case brought forth the concept of an “electronic will” which up until a recently discussed California law I did not know was even an option. However, I didn’t pay much attention to the new law, which would have been effective January 1, 2020 but it didn’t pass.

As I read through the proposed California probate code sections (pasted below) I do see how it would work. I encourage you to read through, especially section 6115, to see how it would work in the future. Hopefully this will be passed in the near future.

I will ask one of the attorneys in my firm who does estate planning to blog on the estate planning side of this. That is, can you do an electronic will, now, at home, during this Covid-19 Coronavirus attack? I think the answer is still no but there are other at-home options that are legal. We will do a more complete blog post soon so please check back for that!

With sympathies for your loss I am here to discuss electronic wills in a California probate court if the need arises for you.

-John Palley

SECTION 1.

Section 6113 of the Probate Code is amended to read:

6113.

A written or electronic will is validly executed if its execution complies with any of the following:

(a) The will is executed in compliance with Section 6110 or 6111 or Chapter 6 (commencing with Section 6200) (California statutory will) or Chapter 11 (commencing with Section 6380) (Uniform International Wills Act).

(b) The execution of the will complies with the law at the time of execution of the place where the will is executed.

(c) The execution of the will complies with the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

SEC. 2.

Chapter 2.5 (commencing with Section 6115) is added to Part 1 of Division 6 of the Probate Code, to read:

CHAPTER 2.5. Electronic Wills

6115.

(a) This chapter shall be known, and may be cited, as the Electronic Wills Act.

(b) (1) It is the intent of the Legislature in enacting this chapter that a will executed as an electronic will be given the same status as a will executed as a paper will.

(2) A court shall apply the provisions of this part generally relating to wills to an electronic will, unless the context requires otherwise.

6115.2.

(a) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(b) “Electronic presence” refers to two or more individuals in different locations who are able to communicate in real time by sight and sound.

(d) “Electronically logically associated” means electronically connected, electronically cross-referenced, or electronically linked in a reliable manner.

(e) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(f) “Sign” means, with present intent to authenticate or adopt a record, to do any of the following:

(1) Execute or adopt a tangible symbol.

(2) Affix to, or logically associate with, the record an electronic symbol or process.

(g) “Textual record” means a record created, generated, sent, communicated, received, or stored by electronic means that is readable as text.

(h) “Will” includes a codicil and a testamentary record that appoints a personal representative, revokes or revises another will, nominates a conservator, or expressly excludes or limits the right of an individual or class to succeed to property of a testator passing by intestate succession.

(i) “Writing” includes an electronic writing stored in an electronic or other medium and retrievable in perceivable form.

6115.4.

(a) (1) An electronic will is a writing in a textual record, with the intent that the textual record be the testator’s electronic will, by either the testator or another individual in the testator’s name, in the testator’s conscious presence, and at the testator’s direction.

(2) A will is an electronic will if it is signed electronically.

(b) An electronic will shall be signed electronically by two or more individuals, each of whom signed within a reasonable time after the individual, in physical or electronic presence of the testator and at the testator’s specific direction, who understand that the instrument that they sign is the testator’s will, and who witnessed either of the following:

(1) The signing of the electronic will under subdivision (a).

(2) The testator’s acknowledgment of the signature or of the electronic will.

6115.6.

If an electronic will was not witnessed or acknowledged in compliance with this chapter, the electronic will shall be treated as if it was witnessed or acknowledged in compliance with this chapter if the proponent of the will establishes by clear and convincing evidence that, at the time the will was signed, the testator intended the will to constitute the testator’s will.

6115.8.

An electronic will with all attesting witnesses physically present in the same location as the testator may be proved at the time of its execution as provided in Section 8220.

6115.10.

If attesting witnesses necessary for a valid will are not physically present at the same location as the testator in the number required for a valid will, an electronic will may be proved by acknowledgment of the electronic will by the testator and by the affidavits of the witnesses that were each acknowledged by a notary public.

6115.12.

An electronic will with all attesting witnesses physically present in the same location as the testator may be proved at any time after the execution, as provided in Sections 8220 and 8221.

6115.14.

A signature physically or electronically affixed to an affidavit attached to an electronic will created pursuant to this chapter is deemed to be a signature affixed to the electronic will if necessary to prove the will’s execution.

6115.16.

(a) An electronic will or part of an electronic will is revoked by either of the following actions:

(1) A subsequent will that revokes the electronic will, in whole or in part, either expressly or by inconsistency.

(2) A revocatory act that is not a record, if it is established by a preponderance of the evidence that the testator performed the act with the intent of revoking the will, in whole or in part, or that another individual performed the act in the testator’s physical presence and at the testator’s direction.

(b) An electronic will may revoke a previous will or part of a previous will.

6115.18.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact the uniform Electronic Wills Act.

6115.20.

This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act (15 U.S.C. Sec. 7001 et seq.), but does not modify, limit, or supersede Section 101(c) of that act (15 U.S.C. Sec. 7001(c)) or authorize electronic delivery of any of the notices described in Section 103(b) of that act (15 U.S.C. Sec. 7003(b)).

6115.22.

This chapter applies to a decedent dying on or after January 1, 2020.