The Illinois General Assembly just passed a bill to authorize various types of estate planning documents to be created and signed in electronic formats.
By way of background, the Electronic Wills and Remote Witnesses Act (“EWRWA”) was enacted in 2021, as a reaction to the COVID-19 pandemic which made the traditional method of executing a will – signing in front of at least two witnesses and a notary public – difficult and, for elderly and infirm people, even risky.
The EWRWA allows “electronic wills” to be admitted to probate. An electronic will is a will that is created and maintained as a tamper-evident electronic record – “tamper-evident” meaning that the electronic record must display any changes which have been made to the will.
An electronic will is executed by a testator signing it with an electronic signature or directing another person to do so in the testator’s presence. The will must be attested by at least two credible witnesses. If another person is directed to sign on the testator’s behalf, that person cannot be a beneficiary under the will, the spouse or child of a beneficiary, or one of the attesting witnesses.
The witnesses must sign the electronic will with their own electronic signatures after seeing the testator sign it, seeing the testator direct another person to sign it on the testator’s behalf, or seeing the testator acknowledge their own signature.
However, under the EWRWA, being in the testator’s “presence” does not require a witness to be in the same physical location. Rather, a person in a different physical location is considered to be in the testator’s presence if the person can know, via audio-video communication, that the testator is signing a document in real time. "Audio-video communication" means communication by which a person can hear, see, and communicate with another person in real time using electronic means (such as Zoom or similar software).
For a witness to attest a will through audio-video communication, the will must designate Illinois as its place of execution, must be signed by the testator or by some person at the testator's direction and in the testator's presence, and be attested to by two or more credible witnesses who are located in the United States at the time of the attestation. (Somewhat surprisingly, the EWRWA requires the remotely located witnesses to be physically present in this country at the time of the remote communication.) During the audio-video communication, the witness must verify the testator’s identity by (a) personal knowledge, (b) government-issued identification, (c) another form of photo identification, or (d) identity proofing, that is, having a third person affirm the testator’s identity through a review of personal information from public and proprietary data sources.
After a person who has made an electronic will dies, the electronic will would have to be admitted to probate. The EWRWA provides that a paper copy of the electronic will must normally be certified – that is, the person who converts the electronic record to a paper copy must state the following, either in testimony to a court or in a certified written statement or affidavit attached to the paper copy: (1) the name of the person who prepared the paper copy; (2) the date that the person prepared the paper copy; (3) the date that the person who prepared the paper copy came into possession of the electronic record; (4) a description of how the person who prepared the paper copy came into possession of the electronic record; (5) confirmation that the paper copy is a complete and correct copy of the electronic record; and (6) confirmation that the electronic record is a tamper-evident electronic record. In addition, a petition to admit an electronic will to probate must include a statement that the electronic will is a tamper-evident electronic record and has not been altered apart from the electronic signatures and other information that arises in the normal course of communication, storage, and display.
But here’s what’s new: Under HB 2269, which passed both the Illinois House and Senate unanimously, electronic “non-testamentary” estate planning documents will also be authorized. Non-testamentary estate planning documents include, for example, trusts; durable powers of attorney; advance directives, including health care powers of attorney; the nomination of a guardian for the signing individual, including a short-term, temporary, or standby guardian; the nomination of a guardian for a minor child or disabled adult child, including a short-term, temporary, or standby guardian; mental health treatment declaration; and other records intended to carry out an individual's intent regarding property or health care while incapacitated or on death. However, deeds for real property and certificates of title for vehicles, watercraft, and aircraft are not included.
HB 2269 provides that an electronic non-testamentary estate planning document, or an electronic signature on such a document is attributable to a person if it was the act of the person -- which may be shown in any manner, including by showing the efficacy of a security procedure applied to determine the person to which the electronic record or electronic signature was attributable. Any such document requiring signing, witnessing, or attestation by another person may be signed, witnessed, or attested electronically by the other person, in the electronic presence of the person who made the document – that is, via live audio-video communication.
Before considering whether to have an electronic will or other electronic estate planning document prepared, it’s necessary to make sure that the person preparing the document has software which can indeed create a tamper-evident document. With the fate of your estate at stake, this isn’t something that the preparer can just improvise.
Just as important, though, you should take into account the fact that most states have not yet accepted electronic wills – as of this writing, Illinois is one of only ten states which has done so. It’s quite common for a person to make a will and then later move to another state – and while a paper will should normally remain valid if the person dies as a resident of another state, an electronic will may not. In fact, New Hampshire and Oregon laws specifically prohibit electronic wills for their own residents, and it remains to be seen whether they will accept electronic wills prepared in Illinois or other states which do allow electronic wills.
While the future of the electronic will remains in question, if electronic estate planning documents become common, Illinois will be able to claim credit for being among the states to lead the way.
We would be happy to discuss your estate planning needs with you. Please feel free to contact Marc Lane in confidence at mlane@marcjlane.com or 312/800-372-1040
Joshua S. Kreitzer is a Senior Associate Attorney with The Law Offices of Marc J. Lane, P.C.