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.
Section 6113 of the Probate Code is amended to read:
A written or electronic will is validly executed if its execution complies with any of the following:
Chapter 2.5 (commencing with Section 6115) is added to Part 1 of Division 6 of the Probate Code, to read:
(a) This chapter shall be known, and may be cited, as the Electronic Wills Act.
(a) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(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.
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.
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.
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.
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.
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.
(a) An electronic will or part of an electronic will is revoked by either of the following actions:
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.
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)).
This chapter applies to a decedent dying on or after January 1, 2020.