Jim Flynn

Jim Flynn, Money & the Law

Few would claim the legal profession is on the cutting edge of technology. But over the past couple of decades, technology has changed the legal profession in many important ways.

For example, courts are now largely paperless. Lawyers exchange documents by scanning and emailing (while facsimile machines gather dust). Judicial hearings and status conferences are conducted virtually, as are mediations and depositions. And legal research is done over the internet, using powerful search applications and massive data bases. (Happy hour, however, is still an in-person event.)

This year, the Colorado Legislature gave the legal profession another push in the direction of technology with the passage of HB21-1004, the Uniform Electronic Wills Act. This act allows for the creation and revocation of a will, and the confirmation of the signing and witnessing of a will, using what the act calls an “electronic presence.” An electronic presence occurs when individuals in different locations communicate “in real time to the same extent as if the individuals were physically present in the same location.”

The Uniform Probate Code, as adopted in Colorado, says that a will, to be valid, must be in writing and signed by the testator (the person making the will) or someone acting at the testator’s direction and in the testator’s conscious presence. And the signing of the will must either be witnessed by two people who saw the testator sign the will or were told by the testator that the signature on the will is genuine. Or alternatively, the testator must acknowledge the signing of the will before a notary public. Also, certain “we know what we’re doing” language added to a will, coupled with notarized signatures by the testator and the witnesses, helps to get the will accepted by a probate court without need for further evidence — a self-proving will.

The Uniform Electronic Wills Act doesn’t change these requirements. Rather, it allows, in most circumstances, for an electronic presence to be substituted for a physical presence. (Nonetheless, under the act, witnesses and notaries must be physically present in Colorado and can’t be hanging out in some distant part of the world.)

The act also validates electronic signatures and permits an electronic will to be revoked by a subsequent electronic will or by a subsequent physical act (destroying a thumb drive? deleting a file?), as long as there is clear and convincing evidence that the act, whatever it was, was intended as an act of revocation.

The Uniform Electronic Wills Act was signed into law on Jan. 21 and applies to the will of any testator who dies on or after that date, regardless of when the will was made. (Of historical note, back on March 30, 2020 and because of the pandemic, Gov. Jared Polis signed an executive order allowing wills to be executed using remote notarization. That order expired on Dec. 31, 2020, and would seem to no longer be of importance because of the Uniform Electronic Wills Act.)

Since rules about will signing are intended to be strictly followed in order to reduce the risk of fraud, anyone making a will (using an electronic presence or otherwise) is best advised to get help from a lawyer knowledgeable about and experienced in the law of wills. If you don’t do it right, the Legislature gets to decide, through rules of intestacy, what happens to your property when you die.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at moneylaw@jtflynn.com.

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