Think about the things you can do electronically that weren’t possible ten, or in some cases, even five years ago. You can order a pizza from your laptop, cash a check using your phone, monitor someone standing at your front door from miles away. You can sign, scan, and e-mail important documents. Can you, and should you, do your estate planning electronically? Let’s talk about electronic wills and recent updates to Ohio probate law.
A typical will is printed on paper, and signed by the person making it (the testator) in front of witnesses, who also sign, attesting that the testator, who was known to them, was actually the person who signed the will. There are exceptions to this general rule—under some limited circumstances, a handwritten, unsigned will can be valid, for instance—but for many years, this has been the accepted standard.
This is not just the result of attorneys clinging to outdated ways of doing things. Generally, when the law requires people to “jump through hoops” to accomplish a legal goal, such as creating a will, it is to protect their rights or the rights of others. In the case of a will, the rights in question are the rights of the testator to distribute a lifetime’s accumulated wealth as he or she sees fit, and the rights of heirs or beneficiaries to their inheritance.
If a will can be submitted to probate without the certainty offered by the long-accepted rules for ensuring a will is valid, abuse is likely to occur. Electronic wills may seem like an advance in convenience, and that is how they are being marketed by companies trying to sell boilerplate wills, but convenience is not why you make a will. You make a will because of the unique needs of your family.
Ohio courts have not issued an opinion on whether a probate court in the state must admit to probate a will signed electronically in Ohio, but witnessed remotely in Nevada (permissible under recent Nevada law). Nevada law says that a valid will may be signed electronically by a non-Nevada citizen outside of Nevada, but witnessed remotely in Nevada outside the testator’s physical presence. Per Nevada law, the will would be considered executed in Nevada if the will said so.
Under Ohio law, specifically Ohio Revised Code section 2107.18, the “borrowing statute,” Ohio might have been required to accept such a will. But Ohio law requires the signing of a will to actually be witnessed by the people who sign as witnesses. This is for the protection of testators and their heirs.
To clarify matters, and to preserve that protection, the Estate Planning, Trust, and Probate Law Section of the Ohio Bar prepared and sponsored an amendment to Ohio law known as the “Brucken patch.” The amended law would prevent a will such as the one described above from being admitted to probate in Ohio. Specifically, the amendment would allow the will of an Ohio resident, executed outside of Ohio, to be admitted to probate in Ohio, only if the testator was physically present in the jurisdiction where the will was executed.
In other words, if Joe is a resident of Dayton, and visits his daughter, Mary, in Nevada (or Idaho, or Georgia, or Vermont), he can make a will there during his visit. If the will is valid in that jurisdiction, it will be admitted to probate in Ohio, so long as Joe was actually present in that other state when the will was executed. If Joe signs electronically from his living room in Ohio, the Nevada will cannot be admitted to probate in Ohio.
Technology is developing and changing fast—much too fast for the law to keep up with every development. Forbes Magazine recently published an article called “Electronic Wills are Coming Whether Lawyers Like It or Not.” But the real issue as far as electronic wills are concerned is not what lawyers like, but what a court will uphold. It may feel good to be the first person you know with the latest audio equipment or new iPhone, but it probably doesn’t make much sense to be an early adopter of trends involving technology and the law until the law is settled. Your heirs will care whether your will was considered valid, not whether you took advantage of technology in making it.
If you have questions about electronic wills or the use of technology in estate planning, please contact Gudorf Law.
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