Electronic Execution of Estate Planning Documents

With the current pandemic, the issue of electronic execution of will, trusts, and other estate planning documents has risen to the forefront. There is already legislation in place in Indiana regarding electronic execution of such estate planning documents. In 2018, Indiana passed legislation for the execution of electronic wills, trust, and other estate planning. The statute, however, has clear requirements that must be complied with for these electronic documents to be valid. One of these requirements is that generally for the execution of an electronic Will, you need two, disinterested witnesses who are physically present with the person who is executing the Will. With the current Stay at Home Order in place in Indiana and with health organizations recommending limited face-to-face contact, it may be difficult for people to have two, disinterested witnesses available without exposing themselves to additional risk.

Yet, on March 31, 2020, the Indiana Supreme Court entered an Order in Supreme Court Case No. 20S-MS-237 that addresses this issue during this public health emergency. The Court has suspended during this public health emergency period, the provisions of the Indiana Code requiring that the testator and two witnesses be physically present together when executing a will or other estate planning documents. They have held that the testator and witnesses may use simultaneous or contemporaneous remote appearance by audio-video technology to execute the documents with witnesses. Yet, any documents executed in this manner must comply with the following:

1. The person executing the document and the remote witnesses must be able to positively identify one another and must be able to see the execution of the estate planning document; and

2. the estate planning document that is being executed:

   1. must specifically refer to the Supreme Court’s Order before the attestation clause or self-proving clause;

   2. must describe in the attestation clause or the self-proving clause, the methods used for remote appearances and for securing the signatures; and

   3. must contain a statement before the attestation clause or self-proving clause acknowledging that the document must be re-executed in compliance with regular, statutory witness procedures within 90 days after the health emergency expires.

Thus, it is important to remember that even though this Order provides a mechanism for executing documents remotely during this period, any documents executed with remote witnesses will need to be re-executed within 90 days after the health emergency expires.

Our office is here to assist you during these difficult time with preparing any necessary estate planning documents or updates, including any updates or revisions that may need to be executed electronically.