Disruptive Innovations in Estate Planning (Electronic Wills)


A new disruptive innovation is on the horizon in the area of estate planning, namely electronic wills.  An electronic will is one that is digitally (not physically) signed and stored electronically.

Traditionally, all parties to a will (the testator, two witnesses and a notary) must be physically present and in the same room for the signing of a will.  The concept of an electronic will would allow all parties to be virtually present through a video conference where each would digitally sign the electronic will with a touch screen or mouse click. The Testator could be in Louisiana, while the witnesses are in Tahiti at the time of execution.

Five states (Florida, Arizona, Indiana, New Hampshire and Virginia) introduced electronic will legislation in the year 2017.  At the time of this writing (Aril of 2017), the Florida Senate actually passed the Florida Electronic Wills Act.  However, it was subsequently vetoed by Governor Rick Scott.  Governor Scott cited several reasons for the veto, basically to the effect that the remote notarization provisions did not offer adequate protection for testators.  The bill will surely be reintroduced and, at some point, somewhere, legislation will be passed, which will be a game changer.

Some states, such as Virginia, already allow eNotaries. An eNotary is a notary public who can notarize documents online.  In fact, if you need a document notarized, simply Click Here to have a Virginia eNotary notarize your document.

The concept of eNotaries is under study in Louisiana, but there is opposition from various groups, including real estate attorneys, who could stand to lose a lot of closing work to lenders who utilize eNotaries for their real estate closings.

At the end of the day, the formalities required for execution of a will in Louisiana are designed to minimize the potential for fraud.  The physical presence of the notary and witnesses helps to ensure everything is above board.  Proponents of electronic wills would argue that it is easier to prevent fraud with an electronic will because the entire ceremony is recorded and preserved by the custodian of the electronic will.  A counter to that argument would be that just off-camera, someone may have a gun pointed at the testator, or perhaps the entire ceremony was digitally altered or photo-shopped.

Not surprisingly, companies in the business of “do it yourself” online estate planning are very interested in the concept of electronic wills.  States without electronic will legislation will not likely welcome the concept because it may fail to adequately protect the public by (i) opening the door to unscrupulous out-of-state attorneys or off-shore companies, (ii) facilitating the unauthorized and online practice of law, (iii) failing to adequately protect against the likelihood of fraud. Regardless, this may be the brave new future world.

Electronic wills will likely be a disruptive technology that may well put your friendly local attorney in the same box as a lonely taxi driver living in an Uber world. However, lawyers who embrace the technology could thrive.

From the consumer’s perspective, choice is good.  In real terms, there are some significant limitations in the Louisiana Trust Code compared to the laws of other states, such a Alaska, which we employ when necessary for this reason.  Concepts such as forced heirship, collation, limited trust duration, seizen and prohibited substitutions often preclude Louisiana residents from accomplishing what they really want or need in an estate plan. The ability to utilize the laws of a more favorable jurisdiction is a good thing and it is fundamental right that individuals should have the right to choose their own lawyer (which is why non-competition agreements are unenforceable against lawyers).

The age of “electronic” estate planning is looming.  Borders and jurisdictional boundaries will dissolve. People will be able to obtain legal documents and services from other jurisdictions entirely online. There will be both positive and negative effects, so we should hope for the best and prepare for the worst and heed the warning of the Third Circuit in a 2017 case we litigated (and won) invalidating a computer-generated will.

In the meantime, you can get cheap Will or Trust from an online source (at your own risk!), but for now, you have to physically execute the documents in Louisiana, but not for long.

Theus Law Offices provides a complete range of estate planning services, including wills, trust, probate, successions, estate administration and probate litigation. If you need a Louisiana wills attorney, trust attorney, estate lawyer or probate attorney in Alexandria, Lafayette, Lake Charles, Baton Rouge, New Orleans, Shreveport, Monroe, Central Louisiana or elsewhere, let our estate planning lawyers and probate attorneys help you.


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