Who Qualifies as a Qualified Custodian of an Electronic Will?

In a recent blog post, I wrote about one of the many changes to Washington’s laws governing trusts and estates passed during our state’s 2021 legislative session: the adoption of the Uniform Electronic Wills Act for our state. In my last post, I discussed the duties that the new law imposes on the “qualified custodian” of an electronic will. In this post, I discuss the qualifications to be a “qualified custodian” of an electronic will.

The requirements for who can – and who cannot – serve as a “qualified custodian” pose the potential to cause unintended consequences for the unwary. This is because the seemingly obvious choices of family members are likely to fail to meet the requirements of a “qualified custodian.” Section 1007 of the Washington law codifying the Uniform Electronic Wills Act defines who may serve as a “qualified custodian” as follows:

 (a) Any suitable person over the age of 18 years, who is a resident of the state of Washington at the time the electronic will was signed;

 (b) A trust company regularly organized under the laws of this state and national banks when authorized to do so;

(c) A nonprofit corporation, if the articles of incorporation or bylaws of that corporation permit the action and if the corporation is in compliance with all applicable provisions of Title 24 RCW;

(d) Any professional service corporations, professional limited liability companies, or limited liability partnerships, that are duly organized under the laws of this state and whose shareholders, members, or partners, respectively, are exclusively attorneys; and

 (e) A will repository in the county in which the testator is domiciled.

Note how (a) includes the adjective “suitable” to describe persons who are qualified as custodians. My Oxford Quick Reference Dictionary defines “suitable” as “well-fitted; appropriate.”

Who gets to decide whether a person is appropriate and well-fitted to serve as a “qualified custodian”? It is no surprise that determining the suitability of a person to serve as “qualified custodian” of an electronic will is not left entirely to the discretion of the testator (the person making the electronic will). The Uniform Electronic Wills Act provides, at paragraph 2 of Section 1007, a list of characteristics that disqualify a person from serving as a “qualified custodian”:

(a) Minors, persons of unsound mind, or persons who have been convicted of

(i) any felony or

(ii) any crime involving moral turpitude;

(b) An individual who is an heir, beneficiary, or otherwise has an interest in testator’s estate; and

(c) Corporations, limited liability companies, limited liability partnerships, except as provided in subsection (1) of this section.

Note that a person who is an heir, beneficiary, or otherwise has an interest in the estate cannot serve as “qualified custodian” of an electronic will.

There are good policy reasons for preventing someone with an interest in an estate from having custody of an electronic will. However, this also creates a potential pitfall in proving the validity of an electronic will. Suppose, for example, that John Dashwood created an electronic Will leaving his country home to his sister, Marianne. He provided the original electronic will to Marianne for safekeeping because she was to be his personal representative of the estate, in addition to being a beneficiary. Tragically, John dies just months after executing his electronic will in a fox hunting accident.

When Marianne meets with a probate attorney to open a probate of John’s estate, she is shocked to discover that John’s will cannot be treated as an original in the probate because a beneficiary –Marianne – cannot be a “qualified custodian.” If the electronic will has not been maintained in the custody of a “qualified custodian,” the new law provides that it is to be treated as a lost or destroyed will. While a lost will may still be admitted to probate, it is only through following a more cumbersome procedure than required when seeking admission of an original will to probate.

Do you have questions regarding electronic wills? We’re here to help!