Is an Electronic Will Right for You?

e-Wills Now Legally Recognized in Colorado

In January 2021, the Colorado Legislature passed a bill giving an electronically created will the same legal stature as a traditional will written on paper. There are still rules and regulations that you must follow for your electronic will, or e-will, to meet Colorado law.

The electronic will was really put to use because of the COVID-19 pandemic, but it has found a permanent place in Colorado’s estate planning landscape.

e-wills

Colorado joins a host of other states across the country that see the value in electronically generated legal documents.

The Pros & Cons of the e-Will

The Advantages

Convenience

A major upside to an e-will is its convenience. This is particularly important for people who may be ill, traveling within the state, or just dealing with a hectic schedule.

You no longer have to arrange to meet with two witnesses in your home or your attorney’s office

to execute the will. And your witnesses can swear to the validity of your identity electronically from their respective locations.

You still have to have your e-will notarized by a certified notary public to make it legally valid. But the notary can certify your will from a remote location as long as it’s in the state of Colorado.

The notary and the witnesses may then electronically sign the document.

Short-Term Costs

Many companies offer e-will software to serve as a template for creating your electronic will. This do-it-yourself option can reduce costs for you in the short term.

More Storage Options

Copies of your e-will can be electronically stored on a cloud service, attached to an e-mail, or in other locations. Securing your e-will in this manner can cut down on the chances of your will being damaged or lost.

The Disadvantages

It’s Not One-Size-Fits-All

An e-will may serve the needs of younger people who may have fewer assets to claim. As you get older, though, and your family grows and you presumably accumulate more wealth and property, your will often becomes more complex.

The software offered online may not be sophisticated enough to handle a more complex estate.

You Don’t Know What You Don’t Know

A simple will can seem pretty straightforward. But what if you need or want a little more than that? Do you know if a trust would benefit you? And, if it would, what kind do you need?

Taking the wrong path, especially when it comes to trusts, could have serious unintended consequences for you and your family. So it’s important to understand the legal terms before you sign a legally binding document.

The Bottom Line

Creating an e-will by yourself may be less expensive and more convenient, but it could cost you more in the long run if you don’t fully understand what you’re trying to accomplish.

Our Estate Planning Team encourages you to talk to an attorney who specializes in estate planning for guidance before you explore creating a will on your own.

Let’s explore more about wills and e-wills.

Making a Will: A Short History

Ancient Greece

The tradition of making a will goes back to Ancient Greece. Wills in the United States, whether paper or electronic, follow 17th Century British law.

Traditionally, wills – whether hand-written or typed – have required a signature in ink and signed in the presence of two witnesses. Those witnesses would attest to your identity and that you were not being pressured during the creation or signing of the will.

The will was then signed and sealed by a notary public.

Fast Forward to Present Day

After hundreds of years of creating wills the same way, the rules are changing.

The Uniform Law Commission (ULC) is a non-profit corporation in Washington that drafts laws the country lacks due to evolving needs and technologies.

States around the U.S. have adapted the ULC’s template for e-wills. With some modifications, Colorado adopted the law in early 2021.

The Good to Knows About e-Wills

You Still Need Witnesses

The law regarding the creation of an electronic will is very new, not only in Colorado but in the rest of the country.

Although some states have modified the rules, some things remain in place as always. For example, Colorado courts still require two witnesses to electronically sign an e-will.

Electronic Wills are Self-Proving

An advantage of signing your will in the presence of two witnesses and a notary public is that the notarization makes the will self-proving. In other words, it proves the legality of the will to the probate court. This does not change for e-wills.

If a testator dies without a self-proving affidavit, one of the witnesses must be located. That witness will have to testify to the validity of the will. A self-proving affidavit avoids this and can expedite the probate process.

You Can Revoke Your e-Will

In Colorado, you may change or revoke your will at any time.

Let’s say you want to distribute your estate in a different way due to the death of a beneficiary, the marriage of another, a divorce, or the birth of a baby. In the case of a tangible will, you can simply destroy it – tear it up – or make a new will that contradicts the provisions of your old will. You may also create a codicil, which is an addition to your original will.

An electronic will drafted after you have created a tangible will revokes all or part of the previous will.

An electronic will can be revoked if a testator or his or her representative can establish clear and convincing evidence that the testator expressed an interest in revoking his/her will to another person who performed the act in the presence of witnesses.

Minor Mistakes in Your e-Will

Judges and courts rely on the harmless error rule in many areas of law, including probate and estate planning.

Let’s look at an example that provides a good explanation of the harmless error rule:

Let’s say a husband and wife create their wills at the same time in the virtual presence of two witnesses and a notary public.

The couple’s intent is to leave their common estate to their children.

Everything is as it should be and all the rules were followed except for one thing: the husband signed his wife’s will, and the wife signed her husband’s will. That’s a no-no.

So in a case like this, the court would likely rule that the signature mistake was a harmless error and has no bearing on the intent of the will.

Changes for Notaries

Most of the rules and regulations governing a so-called tangible will – one written on paper – are the same as those governing electronic wills.

While the notary and witnesses no longer need to be physically present when a will is signed, the notary must be physically in the state of Colorado.

Also required of notaries signing e-wills: 
  • must be trained and commissioned to perform what is known as a Remote Online Notarization or RON
  • attest to the quality and security of the audio-visual equipment to be used
  • maintain proper storage conditions
  • maintain a tamper-evident electronic journal
  • perform notarization in real-time
  • create and control a recording of the notarization

What an e-Will May Look Like

Some Things Never Change

In the hundreds of years Americans have been creating traditional wills, a body of case law has evolved. And legal scholars believe the same will occur as the e-will becomes increasingly popular.

So that means, whether you choose to record your will the traditional way or electronically, you must still ask yourself: what do you want your Last Will and Testament to accomplish?

Whether you’re young and just starting out or getting on in years and want to settle your estate, it’s never too early to make your wishes known.

 

  • If You Have Minor Children: You will want to make sure they are cared for by the person or people of your choice if something should happen to you.
  • If You are an Older or Ill Person: Having a will is the best way to assure your assets end up in the hands of the people you choose and that your wishes are honored.
  • Name a Representative: Creating a will allows you to name someone to represent your wishes. The executor is the person who will make sure the terms of your will are exercised.

The Scary Part of Not Having a Will

In Colorado, if you die without a will, the court will deem you intestate and your estate will be subject to the state’s intestacy laws. If you don’t speak legalese, that just means you died without a will.

Your estate will go to probate court where the court will determine how your estate will be disbursed.

If You Have Family

In Colorado, your assets are distributed to your closest relatives, beginning with a spouse and children. If your spouse and children are no longer living, your estate would then go to your grandkids or your parents.

The court will continue to go down the list of relatives ranging from in-laws, cousins, and nieces and nephews. And in that case, your house, money, and other possessions could go to a relative with whom you are estranged – or just downright do not like.

If You Do Not Have Family

If the state cannot locate any relatives, the state gets your property. That is probably not the ideal outcome or the one you intended for your life’s work.

Talk with an Estate Planning Attorney First

Before you jump into creating an e-will on your own, get some input from a member of our Estate Planning Team at a free, no-obligation consultation.
Call 303-688-0944 to schedule that appointment or click here.

Our firm has highly experienced estate planning, elder law, and probate law attorneys who are knowledgeable about the creation of wills both tangible and electronic. We can help you sort out your simple or highly complex estate so you can make the best decisions about how to protect and disburse your assets in the future.

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