Can Your Will Be Securely Stored in the ‘Cloud?’

As we begin to explore “electronic wills” and the possibilities technology has to offer to estate planning which hope to help alleviate old problems, we should be cautious with the evolving technology.  An estate planning attorney has 500 wills with no owners. Most of the wills came into his office through several law firm acquisitions. Some of the wills are more than 70 years old. However, the New York State Bar Association’s ethics opinion was that he must continue to store the wills because they had undertaken that obligation.

Clients frequently ask estate planning attorneys the same question posed by an article “Could your future will be in the cloud?” from the Daily Local News. Should the attorney keep the original will? How would the attorney know if they had a second will done, or if they died and no longer need the will?  Second original wills can create problems if later Wills are executed.

While it’s almost always better to return to your original estate planning attorney when revising a will, clients are not required to tell attorneys if they are updating a will with another lawyer. Some estate planning attorneys do keep their clients’ wills, as a service to their clients. It may also be a wise thing if the clients are worried about losing the wills or if they are concerned that their executors won’t be able to find them when the time comes.

However, some attorneys do not keep client wills in their offices. They believe that the best place for an original will is in a fire and water-proof secure safe or box in the client’s home. They also count on their good relationship with clients and their families, who they believe will return to their offices when estate plans need to be updated or estates need to be administered.

The issue of a lost will could be averted, if people are diligent about telling their executors where their wills can be found, and if documents are updated from time to time, as their personal situations and laws change.

However, what about storing documents in a world where so much of our private important information is stored in the “cloud,” that is, on a secure platform that is offered to us by a professional or through an online service?

There are several new laws in a number of states that are looking into electronic wills, with new laws, including the Uniform Electronic Wills Act and State Electronic Will statutes. Electronic wills under the Uniform Act must be stored in a tangible or electronic medium that is “retrievable in perceivable form.” In other words, you have to be able to read it. Attesting witnesses must be in the physical presence of the testator or the electronic presence.

For most of us, the brave new world is still developing, and storage of our wills in the cloud may be a few years in the future. Speak with your estate planning attorney about their practices and recommendations for storage of your will and other important estate planning documents. Inquire about whether they provide a secure online portal for document storage, and if it is acceptable by law in your state.

Reference: Daily Local News (Feb. 5, 2020) “Could your future will be in the cloud?”