NEWSFLASH! "Zoom Wills" are Here to Stay: Illinois Codifies Electronic Wills and Remote Witness Act
Author: Victoria L. Cejka and Audrey E. Gamble, Esquire
On July 26, 2021, The Electronic Wills and Remote Witnesses Act (the “Act”) became effective in Illinois. The Act expanded upon the emergency proclamation Governor Pritzker passed on March 26, 2020 in response to the COVID-19 pandemic, which allowed will signings to be witnessed and notarized remotely via video conferencing applications.
True to its name, the Electronic Wills Act validates electronic wills that are created electronically (e.g., via Word processor), saved as electronic record, and signed electronically. The Illinois Probate Act requirements still apply, mandating that the testator must sign the will, or someone in the testator’s presence at the direction of the testator may sign the will, and the will must be attested to within the testator’s presence by two or more credible witnesses. Now, under the Act, the execution can be done electronically, and witnesses can attest remotely through a video-conferencing application so long as the witness can determine the testator is signing the document in real time.
During remote will signings, the witnesses must determine and verify the testator’s identity. If the testator uses an identification card to do so, the testator should hold his or her identification to the camera so as to allow the witnesses and notary to read the identification. Separate signature pages should be distributed to the remote witnesses in advance of the signing and the signature pages should contain a modified attestation clause. The signing witness must also be a person physically located in the United States. During a remote signing, the videoconferencing should be of sufficient connection so that the testator and witnesses feel like they are signing a document in real time.
In order to qualify as an electronic will, the document must be maintained in a “tamper-evident electronic record” (Section 1-20 of the Act) on an application that is capable of documenting any change made to the will. Furthermore, any person or business possessing an electronic will is a custodian charged with protecting the electronic will. Until the courts implement systems to file electronic wills, an attorney or another custodian of the will shall be charged with creating certified paper copies to be admitted in court proceedings.
The Act also provides for remote execution, attestation, and witnessing of other documents, such as trust agreements and powers of attorney for property.
Despite the progress of the Act, questions remain as to how and when the Illinois courts will implement the necessary infrastructure and technology to process and file electronic wills. Additional legal changes pertaining to remote notarizations through the Illinois Notary Public Act will take effect January 2022.
Those with estate planning needs or wondering how to execute estate plan documents remotely should consult with an attorney for more information.
CONTACT:
Audrey E. Gamble, Esquire
agamble@satclaw.com
Direct: (312) 554-3128
Andrew J. Annes, Esquire
aannes@satclaw.com
Direct: (312) 554-3110
Websites:
https://satclaw.com/
https://www.satcsolutions.com/
https://www.BridgingChicago.com