ARIZONA
HOUSE OF REPRESENTATIVES
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HB 2471: electronic wills and trusts. |
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PRIME SPONSOR: Representative Leach, LD 11 BILL STATUS: Caucus & COW |
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Relating to electronic wills and trusts.
Provisions
1. Allows a person who is 18 years or older and of sound mind to make an electronic will.
2. Requires electronic wills to:
a. Be created and maintained in an electronic record;
b. Contain the date, the testator's electronic signature; and
i. An authentication characteristic of the testator; or
ii. Be notarized by an electronic notary in the presence of the testator.
3. States that self-proved electronic wills must additionally meet the following requirements:
a. Comply with statutory witness requirements for self-proved wills;
b. Incorporate the affidavits of attesting witnesses;
c. Designate a qualified custodian to maintain custody; and
d. Be under the custody of the qualified custodian at all time before being offered for probate or reduced to a certified paper copy.
4. Requires any question raised about the force, effect, validity and interpretation of an electronic will to be determined in the same manner as a holographic will.
5. Specifies that electronic will requirements do not apply to a trust except those contained in an electronic will.
Qualified Custodians (Sec. 3)
6. Prohibits a qualified custodian of an electronic will from being an heir of the testator, a beneficiary or devisee.
7. Requires a qualified custodian of an electronic will to:
a. Consistently employ and store electronic records of electronic wills in a system that protects from destruction, alteration or unauthorized access and detects any changes.
b. Store in the electronic record of an electronic will each of the following:
i. A photograph or visual record of the testator and the attesting witness taken at the time of the electronic will's execution;
ii. Photocopies of any documentation taken at the time of the electronic will's execution and that provide evidence of the identities of the testator and attesting witness; and
iii. An audiovisual recording of the testator, attesting witnesses and notary public, as applicable, taken at the time signatures were placed on the electronic will.
c. Provide any requested information pertaining to practices of maintenance, storage and production to any court hearing a matter involving an electronic will.
8. Requires a person to execute a written statement agreeing to serve as the qualified custodian.
9. Prohibits a person from ceasing service as a qualified custodian until a successor executes a written statement or the person does either of the following:
a. Not designating a successor and provide the testator with:
i. A 30-day written notice that the person will cease service; and
ii. The certified paper original of and all records concerning the electronic will.
b. Designating a successor and provide:
i. A 30-day written notice that the person will cease service to the testator and successor; and
ii. The electronic record of the electronic will and an affidavit with specified information to the successor.
10. Allows a person to rely conclusively on any affidavits provided by a predecessor qualified custodian if all affidavits are provided to the successor.
11. States that if a successor is designated by a testator and executes a written statement under prescribed conditions, the current qualified custodian must cease service and provide the successor with:
a. The electronic record; and
b. An affidavit with specified information.
12. States that if a qualified custodian is an entity, an affidavit of a duly authorized officer or agent of the entity constitutes the affidavit of the qualified custodian.
Access and Destruction of Electronic Records (Sec. 3)
13. Prohibits a qualified custodian from providing access to and information concerning the electronic will or the certified paper original of the electronic will except to:
a. The testator or a person as directed by the testator's written instructions; or
b. The nominated personal representative of the testator or any interested person, after the testator's death.
14. Allows a qualified custodian to destroy the electronic record:
a. 5 years or more after the admission of any will of the testator to probate;
b. 5 years or more after the revocation of the will;
c. 5 years or more after ceasing service as the qualified custodian;
d. 10 years or more after the testator's death; or
e. 150 years after the execution of the electronic will.
15. Requires a qualified custodian to cancel, render unreadable or obliterate the electronic record under written direction of the testator executed under prescribed conditions.
Certified Paper Originals (Sec. 3)
a. They are eligible to act as a qualified custodian and are the designated custodian of the testator;
b. An electronic record was created at the time the testator executed the will;
c. The electronic record has been in the custody of one or more qualified custodians since the execution of the will and has not been altered;
d. The identity of all qualified custodians who have had custody of the electronic record since the execution of the will;
e. The certified paper original is a true, correct and complete copy of the will; and
f. The qualified custodian has custody of all electronic records of the will that are required to be stored.
17. Allows a qualified custodian to rely conclusively on any affidavits provided by a preceding qualified custodian who had always maintained custody of the electronic will.
18. Requires, on the creation of a certified paper original of an electronic will when custody has not been maintained by the qualified custodian, that the person who discovered the will and reduced the will to the certified paper original to each state in an affidavit:
a. When the will was created, if not indicated in the will;
b. When, how and by whom the will was discovered;
c. The identity of each person who has had access to the will;
d. The method the will was stored and the safeguard in place to prevent alterations;
e. Whether the will has been altered since its execution; and
f. That the certified paper original is a true, correct and complete copy of the will.
Revocation of Wills (Sec. 2)
19. Applies revocation of will requirements to electronic wills.
20. Specifies an electronic will may be revoked by cancelation, rendering unreadable or obliteration if there is intent by:
a. The testator or a person in the presence and at the direction of the testator; or
b. A qualified custodian with custody at the direction of the testator.
Electronic Trust Instruments (Sec. 7)
21. Requires an electronic trust instrument to:
a. Contain the electronic signature of the settlor;
b. Be written, created and stored in an electronic record; and
c. Meet the statutory requirements to be a valid trust.
22. States that an electronic trust instrument is deemed to be executed in Arizona if:
a. The trust is maintained by the settlor or trustee at their place of business or residence in Arizona; or
b. Transmitted to and maintained by a custodian designated in the trust instrument at their place of business or residence in Arizona.
Miscellaneous
23. States that in an informal proceeding for original probate of a will, a certified paper original of an electronic will is considered an original will. (Sec. 4)
24. Allows a video recording or other electronic record to be admissible in court as evidence of:
a. The proper execution of a will or trust instrument;
b. The intentions of a testator or settlor;
c. The mental state or capacity of a testator or settlor;
d. The authenticity of a will or trust instrument; and
e. Matters found relevant to the probate of a will or administration of a trust. (Sec. 3, 6)
25. Defines terms. (Sec. 1, 3, 5)
26. Makes technical and conforming changes (Sec. 2, 4, 5)
Current Law
A.R.S. Title 14, Chapter 2, Article 2 outlines the requirements and procedures for the execution of a will. A person who is 18 years or older and is of sound mind is permitted to make a will. A will must be: 1) in writing; 2) signed by the testator or another individual in the presence of and by the direction of the testator; and 3) signed by at least two people after witnessing the signing of the will or the testator's acknowledgement of the signature or will itself. A will that does not comply with these requirements is considered valid as a holographic will, without witnesses, if the signature and provisions are in the handwriting of the testator. A will may be made self-proved by its acknowledgement by the testator and by notarized affidavits of at least two witnesses. A.R.S. § 14-2507 allows a testator to revoke a will in whole or in part: 1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; 2) by performing a revocatory act on the will if the testator performs the act with this intent or if another person performs the act in the testator's conscious presence or by direction. A revocatory act includes burning, tearing, canceling, obliterating or destroying the will or any part of it.
A.R.S. Title 14, Chapter 11 outlines the requirement and procedures for the execution of a trust. A trust may be created by: 1) transfer of property to another person as trustee during the settlor's lifetime or by will or other disposition taking effect on the settlor's death; 2) declaration by the owner of property that the owner holds identifiable property as trustee; and 3) exercise of a power of appointment in favor of a trustee. A trust is only created if all of the following are true: 1) the settlor has capacity to create a trust; 2) the settlor indicates an intention to create the trust; 3) the trust has a definite beneficiary or is a specific trust as specified by law; 4) the trustee has duties to perform; and 5) the same person is not the sole trustee and sole beneficiary. A trust does not need to be evidenced by a trust instrument, but the creation of an oral trust must be established only by clear and convincing evidence and the terms established by a preponderance of the evidence. If a trust is created by a written instrument, it may be amended or revoked only by written instrument executed by the settlor.
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Fifty-third Legislature HB 2471
Second Regular Session Version 2: Caucus & COW
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