On April 26, 2021, Washington Governor Jay Inslee signed into law Senate Bill 5132, which, among several other changes to Washington’s laws governing trusts and estates, includes the Uniform Electronic Wills Act. Beginning on January 1, 2022, Washingtonians can execute electronic wills. Is it time for estate planning attorneys to toss their stockpiles of archival-quality bond paper into the recycling bin? Probably not.

While the advent of electronic wills creates an entirely new method of executing a will in our state – a monumental change in the law – electronic wills are unlikely to replace paper wills anytime soon. Many people are likely to prefer to continue to use a pen and paper to execute a document as significant as a Last Will and Testament. And there is another practical reason why the switch to electronic wills may not be swift. Keeping custody of an electronic will is not so simple as hitting save. If an electronic will is to be treated as an original document, the new law requires that a “qualified custodian” must have “custody of the electronic will at all times following execution by the testator and witnesses.” In other words, simply saving a PDF of a Will executed by electronic signature and stored on a thumb drive or in the cloud might not be sufficient to qualify as an electronic original.

Just like with an original paper will, who has custody of the electronic will and what happens to it matters. Currently, RCW 11.20.010 sets forth the duties of the custodian of an original paper will as follows: “Any person having the custody or control of any will shall, within thirty days after he or she shall have received knowledge of the death of the testator, deliver said will to the court having jurisdiction or to the person named in the will as executor, and any executor having in his or her custody or control any will shall within forty days after he or she received knowledge of the death of the testator deliver the same to the court having jurisdiction.”

The new law requires that the “qualified custodian” of an electronic will must, within thirty days of receiving notice of the death of the testator:

(a)       Deliver said electronic will to the court having jurisdiction or to the person named in the electronic will as executor; and

(b)       Make an affidavit before any person authorized to administer oaths, stating (i) the manner in which the qualified custodian received the electronic will;  (ii) that the electronic will was at all times in the custody of the qualified custodian; and (iii) that the electronic will in the possession of the qualified custodian has not been altered in any way since the custodian received the electronic will.

Note that the “qualified custodian” of an electronic will must make an affidavit regarding the electronic will, in addition to providing the will itself. Who can be a “qualified custodian”?  Stayed tuned for next month, when this question and more tidbits about the new law will be addressed!

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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