As a society, we are moving more and more away from paper records and towards electronic records. Many of us receive “paperless” bills from service providers, we read books on electronic tablets, we take notes on our phones, our taxes are done through digital platforms, and, when we purchase stocks or other investments, it is rare to receive actual paper certificates of our shares. Does this mean that a will which distributes your property upon your death no longer needs to be in a physical document? Not necessarily. Although courts may be willing to accept electronic-only versions of a will, the laws in California at least do not overtly approve of such documents and so may not be worth the risk.
The Current Law on Electronic Wills
Most everyone understands that a will is a legal document that controls how your property should be distributed after your death. Without a will, a state probate court will determine how your property should be distributed based on state “intestacy” laws which generally designate your family members as the ones who should receive the property, regardless of whether you were in contact with them or had expressly wished to distribute your property to others after your death outside of a valid will. In order for a will to be valid, it must meet your state’s “formality requirements.” Generally, most states require a written document, signed by the testator (the person making the will) in the presence of witnesses who also sign the will. If a will does not meet your state’s formality requirements, a court may disallow it and follow the intestacy rules instead.
Only the state of Nevada has passed a law which expressly states that an electronic will – meaning a will preserved only in electronic form and not as a signed, paper document – meets the formality requirements. California and the other 48 states do require a paper document. That said, California does employ what is called the “harmless error rule” which says that a court may admit a will into probate that does not meet the formality requirements if “testamentary intent” can be proven, in other words where there is sufficient evidence to show that the testator did intend the document to be his or her will.
Estate Planning in the Digital Age
What this means is that it is possible that an electronic will can be effective in California, but currently there is an unreasonably high risk that the courts will not admit the will to probate due to the lack of a signed paper document. Given the relative ease of creating a paper will and the enormous financial significance to your beneficiaries of being able to receive their intended testamentary gifts without the uncertainty and cost of an extended probate court battle, it makes sense to work with an estate planning professional to create a valid and effective paper will.
Of course, that does not mean that technology does not play a part in your estate planning. You will want to work with your estate planning professional to make sure digital copies of your paper will are preserved and easily accessible by the necessary parties such as your executor when the time comes. You will also want to make sure that issues such as closing or maintaining digital accounts (e.g. social media, online-only financial accounts, file-sharing, etc.) are properly dealt with through naming a digital executor of your assets.
Work with a Pasadena Estate Planning Attorney Today
Christopher B. Johnson is an estate planning attorney in Pasadena, CA who has helped thousands of individuals and families over the past 18 years in creating and reaching their estate planning objectives, including the creation of new wills and codicils. Schedule a consultation with him today to discuss your estate planning goals.