Is My Electronic Will Legal?

David Little, a principal at the Orinda, California-based law firm Hartog, Baer & Hand, was working at a bank post-college when he was inspired to seek out something more intellectually challenging. Little entered the University of San Francisco’s School of Law in his early 30s, graduating in 2000 and taking on work in litigation before becoming a certified specialist in estate planning, trust and probate law. Recently, he has been tracking developments with electronic will legislation.

For more than a decade, Little has focused on handling estate planning and the administration of trusts and estates. He enjoys the opportunity to help people — whether they are preparing for death or wrapping up a loved one’s affairs — through a difficult time in their lives, particularly when they embrace a thoughtful approach. “You’re getting people to talk about the two things they’re most reluctant to talk about: death and money,” Little said. “And so it can be most rewarding when you break through that reluctance and really get people to think about this in a contemplative way.”

When he’s not helping people to manage their assets and final wishes, Little enjoys relaxing with his wife, hiking in the Bay Area and beyond, and traveling.

Editor’s Note: This interview has been edited for length and clarity.

What is the purpose of a will, and what kinds of assets are typically included?

A will takes care of the transfer of pretty much everything that is in your estate when you die. There are things that don’t pass by your will, such as if you have a joint bank account with someone or a 401K or an IRA with a beneficiary designation. Or if you have your assets in a trust where you name your beneficiary, those things don’t pass by the terms of your will. But everything else does. It essentially says who gets what when you die.

Two things can be challenging for clients to wrap their minds around. One is the gifting — who gets what. If you’re a typical family with kids, that’s usually pretty straightforward. But the second one is that you also have to name an executor, the person who’s going to actually take care of the will. You have to find someone that you trust and is capable, but you can’t really pick someone who’s your age because they may not be around or able to do the job when the time comes.

At what point in their lives should people consider creating a will?

I think that people should have a will or a trust if they have a specific idea about how they want their property to be managed after they die. In California the default estate planning tool is a trust. It’s often referred to as a will substitute, but they’re basically the same thing. They’re more flexible because a trust becomes effective during your lifetime, so if you were unable to handle your affairs, you could essentially have a successor trustee take over, and then they would be managing your assets while you’re still alive. It also avoids probate because assets in a trust don’t go through probate.

There are typically two periods when people start thinking about estate planning. First, in their 20s or 30s when they have children for the first time or buy a house and start to consider their mortality. They may start the process but never finish it. The next stage is when people are in their 50s, often after a parent dies and they’ve gone through the process of wrapping up that person’s affairs. It drives home that sense of mortality a bit more concretely. If you want your assets distributed to someone other than family members — such as charities or friends — then you really want to get that written down.

Little at his home office in the Bay Area

If somebody is suddenly at death’s door and realizes they haven’t made a will, what is their best option?

If there’s not time to meet with an attorney, the advice is to simply get out a sheet of paper and write down who you want to take care of your affairs and who you want to get your assets when you die. Just write that down, date it and sign it in your own handwriting. That’s called a holographic will.

If you die without any estate plan at all, every state in the U.S. has laws that will fill in the blanks in terms of who has priority to serve as the administrator of your estate, and the order in which your assets will be distributed to your heirs. Those are pretty good at mimicking the decisions that people would typically make anyway.

Why does the will need to be handwritten?

If you have a holographic will, there’s no witness requirement. But if you type up your will on a computer and print it out and sign it, that’s not a holographic will, so you’re going to need two witnesses who are not heirs or beneficiaries.

Why isn’t an electronic signature valid on a will in California?

The California civil code that gives digital signatures through programs such as Docusign the same legality as an ink signature makes an exception for wills. Probably what happened when that section of the civil code was being debated was that people on the trust and estate side said there needs to be an exception for wills because this would essentially create electronic wills, and they weren’t ready for that.

I saw from your recent online presentation that four states (Florida, Arizona, Indiana and Nevada) had adopted electronic will legislation while four (California, New Hampshire, Virginia and the District of Columbia) had pending legislation and one (Utah) had adopted the Uniform Electronic Wills Act. Do you think we’ll continue to see a growing enactment of electronic will legislation?

I would have expected this to move along more quickly than it has. California’s bill has pretty much stalled. There just doesn’t seem to be a lot of momentum behind this, and it’s surprising considering that in every other way things are very quickly moving toward digitization. Especially since COVID-19, there’s been a lot of talk about remote notarization of documents so that people don’t have to notarize documents in person. Some states enacted emergency legislation, and others enacted permanent legislation, but California didn’t do either. It would seem that this would carry over into wills, but it just hasn’t.

Can you explain harmless error laws as they apply to wills and how they differ from state to state?

Pretty much every state has legislation that will allow a will that doesn’t meet that state’s laws to be admitted to probate and approved if there’s sufficient evidence to show to the court that the person intended this document to be their will. There have been cases in states without electronic will legislation where people had notes on their computers or in the Evernote app — essentially, electronic wills — that were considered valid because of the harmless error law. California’s harmless error law is more restrictive because it only applies to witness signatures.

What might be a situation in which California’s harmless error law applies?

I had a case where somebody typed up their will and signed it, and then they had their signature notarized, which doesn’t meet the witness requirement. So it wasn’t valid under California law, but it was definitely something that the person had intended to be their will. When we went to admit it to probate, we got declarations from friends, neighbors and other people that this person knew who could confirm what he wanted to have happen when he died. And that was consistent with what he had typed up, so the court approved it even though it wasn’t technically valid.

You mentioned that if an electronic will is found valid in one state, it would be considered valid in California. Is that true for most states?

If a person dies in pretty much any state and has a will that’s found valid in another state, that state would accept the other state’s finding that it’s valid. That’s actually covered by the 11^th amendment of the Constitution, the full faith and credit clause, which is the same law that recognizes the legality of marriage in one state if you move to another state.

When might you have to change your will when moving from state to state?

The venue where your estate is administered is really where you reside when you die. The requirements for a will to be valid are generally not different from state to state, so a will drawn up in one state would likely continue to be valid if you moved. The exception would be if you have an electronic will in a state that has legislation and then move to a state like California that does not recognize electronic wills — if the will had not already been found valid, I don’t think California would admit it to probate.

What is the simplest way to draft a will?

The simplest and easiest option is a holographic will. It’s better than nothing. I’m always reluctant to recommend doing these things online because it can create more problems than it solves, but you could try looking at some of the online options where people go to draft their wills. Those are not electronic wills — what they are essentially doing is preparing a document for you. Then you print it out and sign it, along with witnesses, like a regular will.

Little finished second in his age group in a 2019 half-marathon at Redwood Regional Park in Oakland.

What are the benefits of working with an attorney?

If you have a complex asset situation, or if you have very specific ideas about how you want your assets distributed when you die, then you’re probably better off talking to an attorney. The more complex things get, the less I would recommend trying to go the DIY route with an online will or even a handwritten estate plan. If you’re in a situation such as a blended family with children from different marriages, that certainly creates more complex issues to deal with.

I’ve had clients who have gone on the internet and read up on things, and while they’ve often gained a lot of knowledge, they don’t necessarily have the context. An attorney can raise issues and get you to consider new ideas, such as certain ways of gifting your property, that you might not think of on your own.

Is there any legal value in making a digital copy of your will?

In our practice we scan every estate plan, so we have a digital copy that we send to the clients along with their physical copies. That’s certainly beneficial because it’s so easy to retrieve. For wills you need the original, signed document — that’s what the court is going to accept. But if you have a trust or an advanced healthcare directive or a power of attorney form, those don’t necessarily need to be originals. Someone may ask for them, but it’s not required — at least not under California law.

What would you like to see happen with electronic will legislation?

The law regarding wills really needs to be modernized. It’s ancient law, it goes back centuries and hasn’t changed a whole lot during that time. So when people see electronic will legislation, they think it could be a problem because there could be fraud or intimidation, but those things can happen with a paper will, too. So I think that legislatures need to modernize the way they think about these things because it’s just inevitable. In California, the most likely option is to adapt the current law regarding the requirements for a valid will to include electronic wills.

The first time I gave this presentation, somebody pointed out that people’s assets don’t pass by will as much anymore as IRAs and 401Ks that have beneficiary designations you can change online. And those formalities are determined by Vanguard or Schwab or whatever company holds the plan. So really, the means of validating beneficiaries is already changing to a more digital format.

Thank you, David, for sharing your insight on electronic wills and estate planning.