A will without ink and paper

New laws are allowing people to create and sign wills online without a lawyer or notary present, but experts say there are drawbacks.

  • By Paul Sullivan,
  • The New York Times News Service
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The practice of creating a will to dispose of your assets dates to ancient Greece. The will as most people know it in the United States can trace its form to 17th-century British law.

For centuries, one requirement for a will to be valid, whether it was written by hand, drafted by a lawyer or typed out on a home computer, was that it had be signed with ink in front of witnesses.

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There have been a few exceptions — one litigator recalled a farmer who scrawled his wishes on the dusty tractor that had run him over — but the process has otherwise been largely unchanged since it was conceived.

But a movement is growing to legalize e-signatures for wills and trusts, which would allow people to complete the whole process online, without a lawyer or notary present. The driving force behind this change is the Uniform Law Commission, a nonprofit organization that proposes laws for states to adopt. Last month, the commission drafted the Uniform Electronic Wills Act to serve as a model for states.

Nevada and Indiana already have laws allowing e-signatures; Florida and Arizona are set to adopt similar laws next year. Other states are expected to follow the commission’s guidelines.

Online wills are nothing new. Rocket Lawyer and Legal Zoom offer them, along with scores of other legal documents and services. FreeWill, which I wrote about last year, put a charitable spin on will creation, creating a platform to name charities in a will. A company called Tomorrow is trying to make legal documents like wills more engaging by asking people to go through the process with partners or family members.

But in all of these examples, at the end of the online experience, however easy and clean it may be, the user still has to print out the will and have it signed by a notary and witnessed by two people. Otherwise, the will is not worth the computer paper it was printed on.

After a will is signed and notarized, it has to be stored in a safe place, because uploading it back to the website invalidates it.

“We actually don’t allow you to re-upload it because a facsimile isn’t a legitimate will,” said Dave Hanley, founder and chief executive of Tomorrow. “We tell you print it out and store it somewhere findable and not to put it in the safe where you’re the only one with the combination, since you’ll be dead.”

The Uniform Law Commission’s proposed e-will bill aims to push states to allow the validity of wills that have been electronically signed and stored in the cloud.

Trust & Will, an online start-up, helps people create fully digital wills and trust documents in Nevada and Indiana and is ready to roll out its service as other states pass legislation. It has teamed up with Notarize.com, a platform that provides legal virtual notarization for real estate and legal documents.

“What we do is ensure you never have to deal with an offline experience,” said Cody Barbo, co-founder and chief executive of Trust & Will. “Traditionally, most attorneys retain a copy, you’ll have a copy, and then a trusted friend has a copy. Now, it’s all digital.”

The process works like this: After creating a will online, the user will connect by video chat with a notary who has been emailed the document. The notary reviews the document and asks the creator some questions before notarizing it and sending it back. The procedure is recorded, encrypted and stored by Trust & Will.

Patrick Kinsel, chief executive of Notarize, equates the video notarization to telemedicine, and he said the process provided a verifiable record if the will was ever contested.

“I think of the Sumner Redstone story,” Mr. Kinsel said, referring to the 96-year-old media mogul who has been at the center of a battle for control of his personal fortune and stake in Viacom. “You look at his signatures. They’ve gone from this beautiful hand-scrawled signature to basically this line.” Such a deterioration of a signature is often an indiction of diminished capacity.

“Imagine if you could see the video of him signing documents,” he said, because it would have captured both his image and voice to ensure he understood what he was signing.

Shaun Savage, the founder of goShare, an on-demand moving-services start-up, turned to Trust & Will this year when his company was doing well and he and his wife, Ellyn, were expecting a child.

“It got me to do something I might not have done or have done so quickly if I had gone through a lawyer,” he said. If he had gone the traditional route, the lawyer would “hand me a piece of paper and I’d throw it into a vault until I die.”

Mr. Savage’s company is based in San Diego, so he still had to print the document. “Now I have a tangible package in my house that outlines my wishes,” he said.

But creating and executing a will without the advice of a lawyer, particularly for someone like Mr. Savage, whose company could become substantially more valuable, could be an example of being penny-wise and pound-foolish.

“As someone who has brought and defended a number of will challenges, most states have requirements as to what makes a valid will,” said Amanda DiChello, partner at the law firm Cozen O’Connor. “You can see why people want to do this. Where I see it being a concern is in the authentication issue.”

The Notarize platform requires a valid federal ID, which Ms. DiChello said was not enough. States like Indiana, however, go a step further by asking for an additional genetic scan, like a fingerprint or retinal scan, for security.

Ms. DiChello also worries that some states might alter the Uniform Law Commission’s model. She said this happened to standardized trust language in a similar proposal a few years back.

“The Uniform Commission has proposed this model that very few states are going to adopt,” she said. “Some states are going to be more flexible than other states with what constitutes an e-will.”

Using the video chat poses a challenge, too. Israel Sands, a trust and estate lawyer in Miami Beach, Fla., said that the person signing the will might look fine, but that someone outside the video frame could be exerting undue influence. Having a lawyer draft the documents in addition to being there for the signing offers an extra level of protection.

“This is not like getting toilet paper delivered by Amazon instead of going to a supermarket,” he said. “This is a solemn thing that people don’t do every day.”

For people at risk of being exploited, an e-will may be particularly troublesome. John D. Dadakis, a partner at the law firm Holland & Knight, represented the estate of Huguette Clark, the reclusive heiress who died without close heirs or a will, in a contentious legal battle over her $300 million estate.

“With Huguette Clark, people were trying to get a will for her for ages,” he said. “How does a vulnerable person come to conclude that they can even create a document like this? Someone needs to write the will for her.”

Mr. Dadakis said such e-wills were likely to work better, at least now, for younger people with fewer assets. But if their lives grow more complicated, the online systems may not be robust enough.

“One of the reasons you go to good advisers is to really understand what you’re signing,” he said. “If you sign a will you’ve picked off a website but don’t realize what the will and trusts means, you’re creating even more difficulty for family to understand what’s happening to you and take care of you.”

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