ESTATE PLANNING RECORDS IN ELECTRONIC FORM
Under the “Uniform Non-Testamentary Electronic Estate Planning . Documents Act”, signed by governor Polis in May, 2024, a non-testamentary estate planning document or a signature on a non-testamentary estate planning document may not be denied legal effect or enforceability solely because it is in electronic form.
“Non-testamentary estate planning document” means a record relating to estate planning that is readable as text at the time of signing and is not a will or contained in a will. The term: is limited to a record that creates, exercises, modifies, releases, or revokes: a trust instrument; a trust power that under the terms of the trust requires a signed record; an advance directive, including a health-care power of attorney, directive to physicians, natural death statement, living will, and medical or physician order for life-sustaining treatment; a record directing disposition of an individual’s body after death; a nomination of a guardian for the signing individual; a nomination of a guardian for a minor child or disabled adult child; a mental health treatment declaration; and a few other documents. In short, almost any estate planning record may now be electronic. Your last will must still be on paper. The new law does not require that non-will documents be electronic; it simply allows for electronic records as an alternative.
I am concerned that the new law will encourage more challenges to estate planning records, because it is vague as to proving that a record is authentic. The new law says in part “(T)he act of the person (signing) may be shown in any manner, including by showing the efficacy of a security procedure applied to determine the person to which the electronic record or electronic signature was attributable. Attribution to a person of a document or signature is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption and as provided by other law.”