Chapter 0032 - 561R - H Ver of HB2197

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 14-1201, Arizona Revised Statutes, is amended to read:

START_STATUTE14-1201. Definitions

In this title, unless the context otherwise requires:

1. "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney, a person who is authorized to make decisions concerning another person's health care and a person who is authorized to make decisions for another person under a natural death act.

2. "Application" means a written request to the registrar for an order of informal probate or appointment under chapter 3, article 3 of this title.

3. "Basis for compensation" means an hourly rate, a fixed fee or a contingency fee agreement and reimbursable costs.

4. "Beneficiary", as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and includes the owner of an interest by assignment or other transfer. As it relates to a charitable trust, beneficiary includes any person entitled to enforce the trust. As it relates to a beneficiary of a beneficiary designation, beneficiary refers to a beneficiary of an insurance or annuity policy, an account with pay on death designation, a security registered in beneficiary form or a pension, profit sharing, retirement or similar benefit plan, or any other nonprobate transfer at death. As it relates to a beneficiary designated in a governing instrument, beneficiary includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee or taker in default of a power of appointment and a person in whose favor a power of attorney or a power held in any person, fiduciary or representative capacity is exercised.

5. "Beneficiary designation" refers to a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with pay on death designation, of a security registered in beneficiary form or of a pension, profit sharing, retirement or similar benefit plan, or any other nonprobate transfer at death.

6. "Certified paper original" means a tangible medium that contains both the text of an electronic will and any self-proving affidavit concerning the electronic will and that is accompanied by an affidavit that is executed pursuant to section 14-2523.

7. "Child" includes a person who is entitled to take as a child under this title by intestate succession from the parent whose relationship is involved. Child excludes a person who is only a stepchild, a foster child, a grandchild or a more remote descendant.

8. "Claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or the protected person, whether arising in contract, in tort or otherwise, and liabilities of the estate that arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. Claims do not include estate or inheritance taxes or demands or disputes regarding title of a decedent or a protected person to specific assets alleged to be included in the estate.

9. "Community property" means that property of a husband and wife that is acquired during the marriage and that is community property as prescribed in section 25-211.

10. "Conservator" means a person who is appointed by a court to manage the estate of a protected person.

11. "Court" means the superior court.

12. "Dependent child" means a minor child whom the decedent was obligated to support or an adult child who was in fact being supported by the decedent at the time of the decedent's death.

13. "Descendant" means all of the decedent's descendants of all generations, with the relationship of parent and child at each generation.

14. "Devise", when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.

15. "Devisee" means a person designated in a will to receive a devise. For the purposes of chapter 3 of this title, in the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.

16. "Disability" means cause for a protective order as described in section 14-5401.

17. "Distributee" means any person who has received property of a decedent from that person's personal representative other than as a creditor or purchaser. Distributee includes a testamentary trustee only to the extent of distributed assets or increment that remains in that person's hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this paragraph, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.

18. "Electronic" means having electrical, digital, magnetic, optical, electromagnetic or similar capabilities.

19. "Electronic record" means a record that is created, generated, sent, communicated, received or stored by electronic means.

20. "Electronic signature" means an electronic method or process that does both of the following:

(a) Is attached to or logically associated with an electronic record and that is executed or adopted by a person with the intent to sign the electronic record.

(b) Uses a security procedure that allows a determination that the electronic signature was all of the following:

(i) Unique to the person using it.

(ii) Capable of verification.

(iii) Under the sole control of the person making the electronic signature.

(iv) Linked to the electronic record to which the electronic signature relates in a manner so that if the electronic record is changed the electronic signature is invalidated.

21. "Electronic will" means a testamentary instrument that is executed and maintained on an electronic medium and that is executed in compliance with section 14-2518.

22. "electronically present" means two or more individuals who are in a different physical location and who are communicating by means of technology that enables all individuals to see and hear each other in real time to the same extent as if the individuals were physically present in the same location.

22. 23. "Estate" includes the property of the decedent, trust or other person whose affairs are subject to this title as originally constituted and as it exists from time to time during administration. As it relates to a spouse, the estate includes only the separate property and the share of the community property belonging to the decedent or person whose affairs are subject to this title.

23. 24. "Exempt property" means that property of a decedent's estate that is described in section 14-2403.

24. 25. "Fiduciary" includes a personal representative, guardian, conservator and trustee.

25. 26. "Foreign personal representative" means a personal representative who is appointed by another jurisdiction.

26. 27. "Formal proceedings" means proceedings that are conducted before a judge with notice to interested persons.

27. 28. "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with pay on death designation, security registered in beneficiary form, pension, profit sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney or a dispositive, appointive or nominative instrument of any similar type.

28. 29. "Guardian" means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment but excludes a person who is merely a guardian ad litem.

29. 30. "Guardian ad litem" includes a person who is appointed pursuant to section 14-1408.

30. 31. "Heirs", except as controlled by section 14-2711, means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.

31. 32. "Incapacitated person" has the same meaning prescribed in section 14-5101.

32. 33. "Informal proceedings" means those proceedings conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative.

33. 34. "Interested person" includes any trustee, heir, devisee, child, spouse, creditor, beneficiary, person holding a power of appointment and other person who has a property right in or claim against a trust estate or the estate of a decedent, ward or protected person. Interested person also includes a person who has priority for appointment as personal representative and other fiduciaries representing interested persons. Interested person, as the term relates to particular persons, may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.

34. 35. "Issue" of a person means descendant as defined in this section.

35. 36. "Joint tenants with the right of survivorship" and "community property with the right of survivorship" includes co-owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party's contribution.

36. 37. "Lease" includes any oil, gas or other mineral lease.

37. 38. "Letters" includes letters testamentary, letters of guardianship, letters of administration and letters of conservatorship.

38. 39. "Minor" means a person who is under eighteen years of age.

39. 40. "Mortgage" means any conveyance, agreement or arrangement in which property is encumbered or used as security. Mortgage does not include leases or easements.

40. 41. "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of the decedent's death.

41. 42. "Organization" means a corporation, limited liability company, business trust, estate, trust, partnership, joint venture, association, government or governmental subdivision or agency or any other legal or commercial entity.

42. 43. "Original will" means either an original paper will or a certified paper original of an electronic will.

43. 44. "Paper will" means a testamentary instrument that is executed and maintained on a tangible medium and that is executed in compliance with section 14-2502 or 14-2503.

44. 45. "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent.

45. 46. "Payor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision or any other person who is authorized or obligated by law or a governing instrument to make payments.

46. 47. "Person" means an individual or an organization.

47. 48. "Personal representative" includes an executor, an administrator, a successor personal representative, a special administrator and persons who perform substantially the same function under the law governing their status. A general personal representative excludes a special administrator.

48. 49. "Petition" means a written request to the court for an order after notice.

49. 50. "Proceeding" includes action at law and suit in equity.

50. 51. "Property" has the same meaning prescribed in section 14-10103.

51. 52. "Protected person" has the same meaning prescribed in section 14-5101.

52. 53. "Protective proceeding" has the same meaning prescribed in section 14-5101.

53. 54. "Qualified custodian" means a person who fulfills the requirements of section 14-2520.

54. 55. "Registrar" means the official of the court who is designated to perform the functions of registrar as provided in section 14-1307.

55. 56. "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under that title or lease, collateral trust certificate, transferable share or voting trust certificate and, in general, includes any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of these securities.

56. 57. "Separate property" means that property of a husband or wife that is the spouse's separate property as defined in section 25-213.

57. 58. "Settlement", in reference to a decedent's estate, includes the full process of administration, distribution and closing.

58. 59. "Special administrator" means a personal representative as described by sections 14-3614 through 14-3618.

59. 60. "State" has the same meaning prescribed in section 14-10103.

60. 61. "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.

61. 62. "Successors" means persons, other than creditors, who are entitled to property of a decedent under a will or this title.

62. 63. "Supervised administration" refers to the proceedings described in chapter 3, article 5 of this title.

63. 64. "Survive" means that a person has neither predeceased an event, including the death of another person, nor is deemed to have predeceased an event under section 14-2104 or 14-2702.

64. 65. "Tangible medium" means a medium on which information may be inscribed by writing, typing, printing or similar means and that is perceivable by reading directly from the medium on which the information is inscribed.

65. 66. "Testacy proceeding" means a proceeding to establish a will or determine intestacy.

66. 67. "Testator" includes a person of either sex.

67. 68. "Trust" includes an express trust, private or charitable, with any additions, wherever and however created. Trust also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. Trust excludes other constructive trusts and excludes resulting trusts, conservatorship, personal representatives, trust accounts, custodial arrangements pursuant to chapter 7, article 7 of this title, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions or employee benefits of any kind, trusts created by a city or town for the payment of medical insurance, health care benefits or expenses, long-term or short-term disability, self insurance reserves and similar programs administered by a city or town, legal defense trusts and any arrangement under which a person is nominee or escrowee for another.

68. 69. "Trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by the court.

69. 70. "Ward" has the same meaning prescribed in section 14-5101.

70. 71. "Will" includes a codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession. A will may be a paper will or an electronic will. END_STATUTE

Sec. 2. Section 14-2518, Arizona Revised Statutes, is amended to read:

START_STATUTE14-2518. Electronic will; requirements; interpretation

A. An electronic will must meet all of the following requirements:

1. Be created and maintained in an electronic record that is readable as text at the time of signing.

2. Contain 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. Contain the electronic signatures of at least two persons, each of whom met both all of the following requirements:

(a) Was physically present or electronically present with the testator when the testator electronically signed the will, acknowledged the testator's signature or acknowledged the will.

(b) Electronically signed the will within a reasonable time after the person witnessed the testator signing the will, acknowledging the testator's signature or acknowledging the will as described in subdivision (a) of this paragraph.

(c) If electronically present with the testator when the testator electronically signed the will, acknowledged the testator's signature or acknowledged the will, was physically located within the united states at the time of serving as a witness.

4. State the date that the testator and each of the witnesses electronically signed the will.

5. Contain a copy of a government-issued identification card of the testator that was current at the time of execution of the will.

B. Except as provided in this section and sections 14-2519, 14-2520, 14-2521, 14-2522 and 14-2523, any question raised about the force, effect, validity and interpretation of an electronic will shall be determined in the same manner as a question regarding a paper will executed pursuant to section 14-2502.

C. This section does not apply to a trust except a testamentary trust created in an electronic will. END_STATUTE

Sec. 3. Section 14-2519, Arizona Revised Statutes, is amended to read:

START_STATUTE14-2519. Self-proved electronic will

a. In addition to the requirements of section 14-2504, to be self-proved, an electronic will must meet all of the following requirements:

1. Contain the electronic signature and electronic seal of a notary public placed on the will in accordance with applicable law.

2. Designate a qualified custodian to maintain custody of the electronic will.

3. Before being offered for probate or being reduced to a certified paper original, be under the exclusive control of a qualified custodian at all times.

b. Notwithstanding section 14-2504, subsection B, the affidavits for an attested self-proving electronic will shall be in substantially the following form:

We, ______________, _______________ and _______________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn do declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that he/she signed willingly, or willingly directed another to sign for him/her, and that he/she executed it as his/her free and voluntary act for the purposes expressed in this document, and that each of the witnesses, in the physical or electronic presence and hearing of the testator, signed the will as witness and that to the best of his/her knowledge the testator was at the time of signing eighteen years of age or older, of sound mind and under no constraint or undue influence.

____________________

Testator

____________________

Witness

____________________

Witness

The State of _________________

County of ____________________

Subscribed, sworn to and acknowledged before me by ____________, the testator, and subscribed and sworn to before me by ____________ and ____________, witnesses, this _____ day of _____________.

(Seal)

(Signed)______________________

______________________________

(Official capacity of officer) END_STATUTE

Sec. 4. Section 14-2521, Arizona Revised Statutes, is amended to read:

START_STATUTE14-2521. Qualified custodian; agreement to serve; ceasing service

A. A person shall execute a written statement affirmatively agreeing to serve as the qualified custodian of an electronic will before the person may serve as a qualified custodian. the written statement may be executed by an electronic signature and maintained as an electronic record.

B. Except for a person ceasing to serve as provided in subsection C, paragraph 1 of this section, a person may not cease serving as a qualified custodian until a successor qualified custodian executes the written statement prescribed by subsection A of this section.

C. A person serving as a qualified custodian may cease serving as a qualified custodian:

1. If the person does not designate a successor qualified custodian, by providing the testator with both of the following:

(a) A thirty-day written notice that the person will cease to serve as a qualified custodian.

(b) The certified paper original of the electronic will and all records concerning the electronic will.

2. If the person designates a successor qualified custodian, by providing all of the following:

(a) A thirty-day written notice that the person will cease to serve as a qualified custodian to the testator and the successor qualified custodian.

(b) To the successor qualified custodian, the electronic record of the electronic will and an affidavit that states all of the following:

(i) That the person is eligible to act as a qualified custodian in this state and is the qualified custodian designated by the testator in the electronic will or was designated to act in that capacity by another qualified custodian pursuant to this paragraph.

(ii) That an electronic record of the electronic will was created at the time the testator executed the electronic will.

(iii) That the electronic record of the electronic will has been in the custody of one or more qualified custodians since the execution of the electronic will and has not been altered since the time it was created.

(iv) The identity of all qualified custodians who have had custody of the electronic record of the electronic will since the execution of the electronic will.

D. For the purposes of making the affidavit prescribed by subsection C, paragraph 2, subdivision (b) of this section, the person may rely conclusively on any affidavits provided by a predecessor qualified custodian if all of these affidavits are provided to the successor qualified custodian.

E. If a testator designates a successor qualified custodian in a writing executed with the same formalities required for the execution of an electronic will and the successor qualified custodian executes the written statement prescribed by subsection A of this section, the person serving as qualified custodian shall cease serving in that capacity and shall provide the successor qualified custodian with both of the following:

1. The electronic record of the electronic will.

2. The affidavit prescribed by subsection C, paragraph 2, subdivision (b) of this section.

F. 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.

G. A qualified custodian maintains an electronic will as a bailee, and the electronic will is the property of the testator and not the qualified custodian. END_STATUTE