Assigned to JUD AS
PASSED BY COMMITTEE
Assigned to JUD AS
PASSED BY COMMITTEE
ARIZONA STATE SENATE
Fifty-Third Legislature, Second Regular Session
AMENDED
Purpose
Outlines requirements and procedures for electronic wills and trusts.
Background
A person who creates a will is referred to as a testator. A person who creates or contributes property to a trust is referred to as a settlor, which may include a testator (A.R.S. § 14-10103).
A person may create a will if that person is at least 18 years old and is of sound mind (A.R.S. § 14-2501). A will must be in writing, signed by the testator and signed by two witnesses (A.R.S. § 14-2502). A will that is handwritten (holographic) may be valid without witnesses if the signature and material provisions of the document are in the handwriting of the testator (A.R.S. § 14-2503).
A testator may revoke a will or a portion of the will by either 1) executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or 2) performing a revocatory act on the will as outlined in statute (A.R.S. § 14-2507).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Electronic Will Requirements
1. Requires electronic wills to:
a) be created and maintained in an electronic record;
b) contain the date and electronic signature of the testator; and
c) be electronically signed by at least two witnesses who were physically present with the testator at the time of the testator's signature or the testator's acknowledgment of that signature or acknowledgment of the will.
2. Requires an electronic will's force, effect, validity and interpretation to be determined in the same manner as a holographic will, unless otherwise specified in statute.
3. Specifies electronic will requirements do not apply to trusts unless the trust is testamentary and created in an electronic will.
4. Provides that an electronic will is self-proving if it meets existing requirements to be self‑proving, and:
a) the electronic will contains the electronic signature and electronic seal of a notary public placed on the will;
b) the electronic will designates a qualified custodian to maintain custody of the electronic will; and
c) the electronic will is under the custody of a qualified custodian at all times before being offered for probate or being reduced to a certified paper copy.
Electronic Will Custodians
5. Prohibits a qualified custodian of an electronic will (qualified custodian) to be an heir of the testator or a beneficiary or devisee under the will.
6. Prohibits a qualified custodian from being:
a) related to the testator by blood, marriage or adoption; or
b) a devisee under the electronic will or related by blood, marriage or adoption to a devisee under the electronic will.
7. Requires a qualified custodian to consistently employ and store electronic records of electronic wills in a system that:
a) protects electronic records from destruction, alteration or unauthorized access; and
b) detects change to an electronic record.
8. Requires a qualified custodian to store in the electronic record of the will each of the following:
a) a photograph or visual record of the testator and the attesting witnesses taken at the time of the electronic will's execution;
b) photocopies of any documentation taken at the time of the electronic will's execution that provide evidence of the identities of the testator and attesting witnesses; and
c) an audiovisual recording of the testator, attesting witnesses and notary public, as applicable, taken at the time signatures were placed on the electronic will.
9. Requires a qualified custodian to provide specified information requested by a court in a matter involving an electronic will that is currently or was previously stored by the qualified custodian.
10. States that a qualified custodian may be called by an interested party to serve as a fact witness regarding the maintenance, storage and production of electronic wills.
11. Requires a person to execute a written statement affirmatively agreeing to serve as the qualified custodian.
12. Prohibits a person from ceasing to serve as a qualified custodian until a successor executes the required written agreement to serve as the new qualified custodian.
13. Allows a person to cease serving as a qualified custodian by:
a) providing, if the person does not designate a successor qualified custodian, the testator with:
i. 30-day written notice that the person will cease to serve as a qualified custodian; and
ii. the certified paper original of the electronic will and all records concerning the electronic will.
b) providing, if the person designates a successor qualified custodian:
i. 30-day written notice that the person will cease to serve as a qualified custodian to the testator and the successor qualified custodian; and
ii. the electronic record of the will and an affidavit to the successor qualified custodian that contains specified statements.
14. Allows a person to rely conclusively on an affidavit provided by a predecessor qualified custodian if all affidavits are provided to the successor.
15. Requires a qualified custodian to cease serving in that capacity and provide the successor with an electronic record and required affidavit if a testator designates a successor qualified custodian in writing with the same formalities required for execution of an electronic will and the successor qualified custodian executes a written agreement to serve as the custodian.
16. Specifies that if a qualified custodian is an entity, an affidavit of a duly authorized officer or agent of the entity constitutes an affidavit of the qualified custodian.
Electronic Record Access
17. Requires a qualified custodian to only provide access to, or information concerning, the electronic will in the electronic record or the certified paper original to:
a) the testator or another person as directed by written instructions of the testator; or
b) after the testator's death, the nominated personal representative of the testator or any interested person.
18. Allows a qualified custodian to destroy the electronic record at the earlier of:
a) 100 years after the testator's death; or
b) 5 years after the testator's last will is admitted to probate and all appellate opportunities have been exhausted.
19. Requires a qualified custodian to cancel, render unreadable or obliterate the electronic record if the testator directs the qualified custodian to do so in writing, executed with the same formalities required for the execution of an electronic will.
Certified Paper Originals
20. Requires a qualified custodian to state specified information in an affidavit when creating a certified paper original of the will if the electronic will has always been in the custodian's custody.
21. Allows a qualified custodian to rely conclusively on affidavits provided by a predecessor qualified custodian for purposes of creating a certified paper original of the will.
22. Requires, when the electronic will has not always been in the custody of a qualified custodian, the discoverer of an electronic will and the person who reduced the electronic will to a certified paper original to make specified declarations in an affidavit.
Electronic Trust Instruments
23. Requires an electronic trust 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 for being a valid trust.
24. Declares an electronic trust instrument to be executed in Arizona if:
a) the electronic trust instrument is maintained by the settlor or trustee at their place of business or residence in Arizona; or
b) the electronic trust instrument is transmitted to and maintained by a custodian designated in the trust at the custodian's place of business or residence in Arizona.
25. Excludes testamentary trusts from electronic trust requirements.
Miscellaneous
26. Specifies that a will's validity is based on the law where the testator is physically present when executing the will instead of the place where the will is executed.
27. Requires the court, in an informal proceeding for original probate of a will, to determine if the will consists of an electronic will or a certified paper original of an electronic will, or both.
28. Provides that an original will, for the purposes of a petition for formal probate, includes a certified paper original of an electronic will.
29. States that rendering a will unreadeable is a revocatory act for purposes of will revocation.
30. Defines key terms.
31. Makes technical and conforming changes.
32. Becomes effective on January 1, 2019.
Amendments Adopted by Committee
1. Requires electronic wills to be electronically signed by two witnesses physically present to validly execute the will.
2. Removes provisions relating to admissibility of video recordings and electronic records as evidence.
3. Makes changes to how long a qualified custodian must keep record of an electronic will.
4. Removes procedures unique to revoking an electronic will.
5. Adds additional requirements for serving as a qualified custodian.
House Action Senate Action
JPS 2/14/18 DP 9-0-0-0 JUD 3/22/18 DPA 7-0-0
3rd Read 2/21/18 DPA 57-0-3
Prepared by Senate Research
March 26, 2018
JA/lat