Could your future will be in the cloud?

A recent headline from the “American Bar Association Journal” immediately attracted my attention as an estates and elder law attorney. It read: “Lawyer who can’t find testators for over 500 wills can’t toss documents, ethics opinion says…”

It is true I am approached by clients from time to time asking how long they need to retain certain documents. However, 500 wills in storage for an indefinite period might seem extreme. On the other hand, how would an attorney who stores wills know how long to keep a document? There seems to be no appropriate time to discard at any time since the wills in question might never have been superseded and the testator could still be living. The opinion is out of New York.

To get the full flavor of the article it would help to know some of the wills in question were more than 70 years old and the New York attorney holding them had diligently tried to locate the owners — the testators for whom the wills had been prepared. Also the firm had acquired other firms that dissolved or moved on and this attorney “inherited” the wills. The opinion was from the New York State Bar Association.

Clients are not obligated to tell prior attorneys they are rewriting their wills with another office. There is a reason why

The typical explanation given for retaining original wills at the lawyer’s office is that clients might lose them or executors may be unable to find them at the appropriate time.

when a will is probated with the register of wills office, it is called the last will. Strictly speaking, you could rewrite your will every day, week, or month, although I would not recommend it and only your last will matters for disposition of your estate. It is also true that your original attorney could be holding wills that are not your last will.

The typical explanation given for retaining original wills at the lawyer’s office is that clients might lose them or executors may be unable to find them at the appropriate time. Another reason might be in the hopes that executors while needing to come back to the attorney to obtain a will from storage could then feel compelled to use that attorney for administration of the estate.

As an aside I have not believed in our office’s holding on to the original documents. For one thing it is an enormous responsibility to assure these documents are never lost or damaged. For another I figure where those who have been content with our work have executors who also realize we are involved and if we continue to have a relationship over the years, executors will come back of their own accord. Finally there is the issue given in the ABA Journal article — lawyers could hold wills that are no longer valid and have been replaced and might need to hold them indefinitely. I have had clients who are over 100 years old.

The lost will issue could be averted if testators notify their executors at all times where the original will is located and if they review their documents from time to time and update as laws and personal conditions change.

In any event, all of this leads to an intriguing question. Where most of the world has been going “paperless,” could wills of the future be pulled from the cloud or from successor technology? If so, what controls will there be and how do they relate to plain old paper?

Another intriguing article came by way of Gerry W. Beyer, professor of law at Texas Tech University School of Law. The article is titled “Technology’s Impact on the Changing Future of the Trusts and Estate Practice,” rev. 01/12/2020. Beyer, gazing into the future, considers electronic wills, the Uniform Electronic Wills Act and State Electronic Will statutes.

Who knew? I did not research whether this law has penetrated the borders of Pennsylvania yet but assuming it has not, we still need to be ready.

Electronic wills under the Uniform Act apparently must still be stored on a tangible or electronic medium that is “retrievable in perceivable form” — in other words no audio or video recordings, no YouTube. It must be able to be read. Electronic signatures are provided for. Attesting witnesses must either be in the physical presence of the testator or the electronic presence. Not here yet but welcome to the New Age!

Janet Colliton, Esq. is a Certified Elder Law Attorney and limits her practice to elder law, retirement and estate planning, Medicaid, Medicare, life care and special needs at 790 East Market St., Suite 250, West Chester, Pa., 19382, 610-4366674, colliton@collitonlaw.com. She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, cofounder of Life Transition Services LLC, a service for families with long term care needs. Tune in on Wednesdays at 4 p.m. to radio WCHE 1520, “50+ Planning Ahead,” with Janet Colliton, Colliton Elder Law Associates, and Phil McFadden, Home Instead Senior Care.