Electronic Wills and Digital Assets: Reassessing Formality in the Digital Age

57 Pages Posted: 6 Mar 2020

See all articles by Natalie Banta

Natalie Banta

Drake University - Law School

Date Written: February 5, 2020

Abstract

The law of Wills, dating back to 1540, is one of the last holdouts against the digital revolution. In 2019, a will in most states cannot be an electronic document. The Wills Acts adopted by every state in America requires a testamentary will to be in writing, to be signed, and to be attested in the presence of at least two witnesses. States have interpreted the Wills Act, in most cases, to require a physical document printed and signed by hand by a testator and witnesses. For centuries, these pillars of the law of wills have remained resolute and uncompromised. Attempts have been made to lessen the strict requirements of testamentary formality, but only a handful of states have adopted legislation applying what is called the harmless error doctrine. The advent of digital asset succession, however, has taken a more immediate path to encourage chipping away at the formalities for a will. Almost all of the states have adopted digital asset legislation, which only requires a testamentary statement regarding these assets to be in writing in order to be valid. Digital asset legislation opens the door to an even more sweeping change — purely electronic wills. Adopting electronic wills would be a dramatic change to the Wills Act but would not dramatically change property transfers after death. More wealth transfers after death under a nonprobate instrument such as a trust or private contract between a decedent and a financial or insurance company. These testamentary transfers are already largely electronic. Technological changes and expectations in society have been challenging the Wills Act for years. Courts are beginning to broadly interpret the Wills Act to incorporate technological changes. A few states have begun experimenting with versions of electronic wills, and the Uniform Law Commission is proposing legislation to allow electronic wills in the upcoming year. The strict formalities of the Wills Act can still be met by allowing an electronic version of a will. Indeed, as this article argues, electronic wills can serve as reliable evidence of testamentary intent, protecting a testator’s interests, and fulfilling the purposes of succession law. State legislatures should adopt legislation allowing for electronic wills in order to bring a cost-effective and efficient way of transferring assets at death and to encourage more people to exercise their freedom of disposition.

Keywords: electronic wills, digital assets, succession, formality, probate, nonprobate, testamentary, wills act

Suggested Citation

Banta, Natalie, Electronic Wills and Digital Assets: Reassessing Formality in the Digital Age (February 5, 2020). Baylor Law Review, Vol. 71, No. 3, 2019. Available at SSRN: https://ssrn.com/abstract=3532740

Natalie Banta (Contact Author)

Drake University - Law School ( email )

27th & Carpenter Sts.
Des Moines, IA 50311
United States
5152712658 (Phone)
5152712658 (Fax)

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