Which Estate Planning Documents can be Signed Electronically?

The Act specifically allows the following documents to be signed using an electronic signature:

• An inter vivos trust agreement;
• A document exercising a power granted to a trustor, trustee, beneficiary, or a third party under the terms of a trust, statute, or other rule of law;
• A certification of trust;
• A power of attorney (for health care or financial purposes);
• An agent’s certification of the validity of a power of attorney;
• A power of appointment;
• A health care directive;
• Disposition of remains instructions;
• Guardian or conservator instructions;
• A nomination of a guardian or conservator for the signing individual;
• A nomination of a guardian or conservator for a minor child or disabled adult child or a delegation of parental powers;
• A mental health advance directive;
• A community property agreement;
• A disclaimer;
• A trust decanting;
• A writing (separate from a Will) directing the disposition of tangible personal property; or
• Any other record intended to carry out an individual’s intent regarding property or health care while incapacitated or on death.

If any of the documents listed above are required to be notarized, acknowledged, witnessed, or attested to, the Act authorizes the notarization, acknowledgement, witnessing, or attestation to also be made electronically.  Other notable provisions of the Act include detailed requirements for the retention of electronically signed documents, a requirement that documents signed in accordance with the Act cannot be excluded from evidence in a proceeding solely because it is in electronic for, and amendments to various other statutes to comply with the Act

While the Act extends the use of electronic signatures to a broad range of common estate planning documents, the Act specifically excludes: (1) a Will, (2) a deed of real property; (3) certificate of title for a motor vehicle, watercraft, or aircraft; and (4) a nonjudicial settlement agreement.

What Exactly is an Electronic Signature?

The Act defines an “electronic signature” as “an electronic symbol or process attached to or logically associated with a record that uses a security procedure and is executed or adopted by a person with the intent to sign.” This definition presumably includes the use of common third-party electronic signature services such as DocuSign or AdobeSign, but is broad enough to apply to numerous other forms of electronic or digital signatures. The definition of an electronic signature adopted by the Act is narrower than the language proposed by the Uniform Law Commission in that the Act requires the electronic signature process to use “a security procedure”, which is generally defined as a procedure employed for the purpose of verifying the validity of an electronic signature, record, or performance is by a specific person.

Practical Takeaways.

The passage of the Act signifies a shift away from the now seemingly archaic practice of collecting “wet ink” signatures on most estate planning documents (whereas that shift has occurred much more quickly in other disciplines).  It also provides clarity to individuals and practitioners by expressly authorizing many common estate planning documents to be signed electronically independent of Chapter 1.80 RCW (the Uniform Electronic Transactions Act), which was codified in 2020 and broadly authorizes the use of electronic signatures.  Perhaps more importantly, the allowed use of digital signatures should accelerate the process of executing certain estate planning documents and reduce the need for in-person signing appointments, which could be especially helpful in emergency or end-of-life situations.

If you have any questions about the Act or need to discuss any other estate planning issues you may have, please contact an attorney in our estate planning practice group, including Matt Hart or Ryan Montgomery.