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ARIZONA STATE SENATE
Fifty-Fourth Legislature, First Regular Session
electronic wills; requirements
Purpose
Modifies certain requirements for electronic wills.
Background
Laws 2018, Chapter 328 established requirements and procedures for electronic wills, beginning July 1, 2019. An electronic will is a testamentary instrument that complies with the following requirements: 1) it is created and maintained in an electronic record; 2) it contains the electronic signature of the testator or the testator's electronic signature made by some other individual in the testator's conscious presence and by the testator's direction; 3) it contains the electronic signature of at least two persons who meet specified criteria; 4) it states the date that the testator and each of the witnesses electronically sign the will; and 5) it contains a copy of a government-issued identification card of the testator (A.R.S. §§ 14-1201 and 14-2518).
Currently, a person who is generally competent to be a witness may act as a witness to a will. Statute provides that the signing of a will by an interested witness does not invalidate the will or any provision of it (A.R.S. § 14-2502).
An electronic will is self-proving if it meets the form and signature requirements in addition to the following: 1) it contains the electronic signature and electronic seal of a notary public placed on the will; 2) the electronic will designates a qualified custodian to maintain custody of the electronic will; and 3) 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 (A.R.S. §§ 14-2504 and 14-2519).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Prohibits a devisee under a will or a person related to a devisee by blood, marriage or adoption under a will from acting as a witness to a will executed after September 30, 2019, unless the will is self-proving.
2. Defines devisee, for the purposes of the witness requirements to execute a will, as a person who is:
a) designated in the will to receive a devise; or
b) a beneficiary of a trust designated in the will to receive a devise.
3. Requires a copy of a government-issued identification card of the testator included in an electronic will to be current at the time of the electronic will's execution.
4. Specifies that an electronic will is self-proving if it is under the exclusive control, rather than the custody, of a qualified custodian at all times before being offered for probate or being reduced to a certified paper original.
5. Requires a qualified custodian to maintain an electronic will as a bailee and specifies that the electronic will is the property of the testator.
6. Requires a qualified custodian to state in an affidavit when creating a certified paper original of an electronic will that remains in the qualified custodian's custody the following:
a) the electronic record has been under the exclusive control, rather than in the custody, of one or more qualified custodians since the electronic will's execution and without alteration; and
b) the records concerning the electronic will are under the exclusive control, rather than in the custody, of the qualified custodian.
7. Requires the discoverer of an electronic will and the person who reduces the electronic will to a certified paper original to make specified declarations in an affidavit when the electronic will has not always been under the exclusive control, rather than in the custody, of a qualified custodian.
8. Specifies that an electronic will is valid if the electronic will's execution complies with the statutorily prescribed requirements.
9. Includes, in the definition of electronic signature, an electronic method or process that is:
a) attached to or logically associated with an electronic record; and
b) executed or adopted by a person with the intent to sign the electronic record.
10. Defines original will and tangible medium.
11. Modifies the definition of certified paper original.
12. Makes technical and conforming changes.
13. Becomes effective on the general effective date, retroactive to July 1, 2019.
House Action
JUD 1/30/19 DPA 10-0-0-0
3rd Read 2/14/19 60-0-0
Prepared by Senate Research
March 12, 2019
JA/AB/kja