E-Wills a ‘Gamechanger’ for Estate Planning
Colorado becomes second state to enact uniform electronic wills, experts hope it will modernize process

by Avery Martinez

A new law in Colorado will allow for individuals to sign electronic wills, alleviating concerns about access raised during the pandemic and offering options to clients in the future. Colorado, according to the Uniform Law Commission website, is one of only two states to enact such a uniform act.

The Colorado General Assembly on Jan. 15 passed House Bill 1004 with bipartisan support. The bill, known as the Colorado Uniform Electronic Wills Act, declares that an electronic will is a will for all purposes under state law, according to the Colorado General Assembly website.

A Colorado Bar Association press release described the bill as modernizing Colorado’s estate planning law by giving Coloradans the option of executing testamentary wills either on paper or electronically and finalizing wills remotely and by adopting a long-term policy solution for further modernizing estate planning.

“This is new ground, this is new territory we’re going into, but we couldn’t even tread this ground without legislation like this,” said John Valentine, special counsel at Balson Faix & McVey.

The bill was welcomed, due to traditional practices and the sudden end to much social interaction during COVID-19, said Kami Pomerantz, a partner at Holland & Hart and chair of the firm’s private client group, which deals with estate planning.

Typically, Colorado requires two witnesses and a notary to be present when executing a will. Normally, the person executing the will would go to their attorney’s office and meet in-person with everyone necessary to execute it. During the pandemic, that process became difficult, due to office closures and limits on in-person gatherings, Pomerantz said. In fact, Pomerantz said she enlisted her husband and daughter several times to act as the second witness on a will — sometimes finding herself masked and standing outside on the front porch of a client’s home, talking to them inside.

Utah is currently the only other state to have enacted a universal act for electronic wills, according to the Uniform Law Commission website. However, three other states have introduced universal legislation: North Dakota, Virginia and Washington. Four states, Florida, Arizona, Nevada and Indiana, have passed electronic will legislation, but not ULC suggested framework and have specific regulations.

While seemingly tailor-made for concerns about social distancing and in-person gatherings, the electronic will legislation was in the works before the pandemic arrived, according to Valentine. The bar has been considering the bill for a little over a year. The legislation was born out of the idea that “it would be a good idea” for attorneys and clients to execute documents remotely and via electronic format.

The Uniform Electronic Transactions Act, first enacted in Colorado in 2002, facilitates “e-commerce and e-government” in the state by giving electronic signatures and records the same force and effect as non-electric ones, according to the Colorado Governor’s Office of Information Technology. However, Valentine said the Uniform Electronic Transactions Act specifically excludes wills. The act did not apply to e-signing of wills and was never available as an option to estate planning attorneys, though other transactions can be completed electronically.

While the start of the legislation wasn’t a result of the pandemic, Valentine said the timing of its passing was motivated by the current pandemic and restrictions around gatherings.

“I think the legislature was motivated to move more quickly with this legislation, given how it might benefit people who don’t want to — or simply can’t — meet with somebody … in person and wants to meet remotely,” Valentine said.

Early in the pandemic, notary services were allowed to be offered online in Colorado, Pomerantz said. However, the rule for wills remained unchanged. She said she’d hoped for some direction about the situation from the Colorado Supreme Court, but as none presented itself, the legislation was a welcome sight.

While the notary services were allowed online, special training was required to obtain that permission, according to Pomerantz. One such notary is Jody Hall, a paralegal with the Holland & Hart private client group, who has been working with electronic options for estate actions since March 2020. Hall added that the Colorado Remote Notary Law, which was passed on Dec. 31, requires real-time audio/video, which must be recorded and then stored for 10 years.

Throughout the years, there were concerns about moving wills into the electronic setting for security, fraud and other reasons, Hall said. However, since embarking on the process of learning electronic options for notarization, Hall said she believes it’s more secure.

Many more questions are asked to verify identity, she said, and the fact that the instance is recorded is an additional layer of security. “It’s fantastic that Colorado recognized that this was a great option to provide to the citizens,” Hall said.

Pomerantz said the reason these acts haven’t been enacted before was because of fraud concerns, mainly stemming from the fact that not everyone was in the same room, and that somehow a person out of view could be threatening the person in the video.

“I can tell you that I don’t think that … in the vast majority of cases that’s a worry,” Pomerantz said.

Hall said she loves the flexibility, ease and safety of doing things remotely. “I think it’s a gamechanger,” she said, adding that she was curious to see what will happen when she first has to file an e-will in probate court.

Despite the benefits, some had been uncertain that passing such a bill would ever be realistic. Pomerantz said she never thought about the possibility of e-wills prior to the pandemic, and Hall agreed, noting that the estate planning world was all on paper.

Although the legislation was signed Thursday, Valentine said he believes in-person meetings with clients over wills will never disappear. Getting to know clients through conversations and in-person interaction will always be appealing to clients and attorneys. But the act also allows for the use of fully electronic wills, Valentine said. This in turn could allow for an electronic copy of the will to be stored instead of a previously required paper copy. Hall added that storage of wills could be positively affected by a new electronic storage option.

Both Valentine and Pomerantz agreed this change would help with client concerns of keeping a physical copy of the will and the possibility of destruction or loss.

“I think it could be a new standard in Colorado on the forefront, I think people just need to get used to it. And other states need to see the sky is not falling,” Pomerantz said.

 

This article appears in the Jan. 25 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.