Electronic Wills and Trusts in Nevada
The recent concern over COVID-19 (colloquially referred to as the “coronavirus”) has led many to reassess, or even consider for the first time, their estate planning and end-of-life decisions. However, the thought of traveling or even meeting in a public space in this age of “social distancing” can be a spot of concern.
Did you know that Nevada is one of only a handful of states in the entire nation to offer and validate electronically-created and electronically-signed Trusts (see NRS 163.0095) AND electronically-created and electronically-signed Last Wills and Testaments (see NRS 133.085)?
Typically, a valid Last Will and Testament must be dated and signed by the testator (the person whose estate is being distributed through the Will), in the presence of two witnesses who are not related to the testator and who do not stand to inherit from the Will (sometimes referred to as a “disinterested witness”).
To create a valid trust, the grantor (also sometimes referred to as the “settlor” or “trustor”) should appear personally before a notary public to acknowledge he or she was the signor of the trust document.
However, NRS 133.085 and 163.0095 now provide that in Nevada a will and trust may be drafted, signed and even witnessed and notarized, electronically or virtually and still be valid.
For an Electronic Will to meet the requirements of the statute, it must be:
- Created and maintained in an electronic record;
- Contain the date of the signature AND include at least one of the following:
a. An authentication characteristic of the testator OR a characteristic of a certain person that is unique to that person and that is capable of measurement and recognition in an electronic record as a biological aspect of or physical act performed by that person, such as:
- A fingerprint;
- A retinal scan;
- Voice recognition;
- Facial recognition;
- Video recording; or
- A digitized signature or other commercially reasonable authentication using a unique characteristic of the person.
b. The electronic signature and electronic seal of an electronic notary public, placed thereon in the presence of the testator and in whose presence the testator placed his or her electronic signature thereon; OR
c. The electronic signatures of two or more attesting witnesses, placed thereon in the presence of the testator and in whose presence the testator placed his or her electronic signature thereon.
Please keep in mind that the testator must still be over the age of 18 and be of sound mind. Another consideration to keep in mind is that to admit the Will to probate in the event of your passing, it must be “self-proving”.
In other words, the probate court requires certain conditions to admit the Will to probate without forcing the witnesses to come in and personally testify.
To self-proving, an electronic / online Will must:
- Contain declarations or affidavits of the attesting witnesses are incorporated as part of, attached to or logically associated with the electronic will; and
- The electronic will designates a qualified custodian to maintain custody of the electronic record of the electronic will; and
- Be, at all times prior to being offered for probate or being reduced to a certified paper original that is offered for probate, under the custody of a qualified custodian.
An Electronic / Online Trust is a valid trust instrument when it:
- Is written, created and stored in an electronic record;
- Contains the electronic signature of the settlor; and
- Meets the requirements set forth in this chapter for a valid trust.
Move over, an Electronic Trust shall be deemed to be executed in this State if it is:
- Transmitted to and maintained by a custodian designated in the trust instrument at the custodian’s place of business in this State or at the custodian’s residence in this State; or
- Maintained by the settlor at the settlor’s place of business in this State or at the settlor’s residence in this State, or by the trustee at the trustee’s place of business in this State or at the trustee’s residence in this State.
The requirement that the Will and/or Trust MUST name and utilize the services of a “custodian” even a “qualified custodian” to maintain custody of the record prior to probate is vital, so please ensure that any attorney with whom you agree to execute an Electronic / Online Trust or Will is both a qualified custodian AND has the ability to store, maintain, and produce that public record virtually.
The attorneys at GRANT MORRIS DODDS, PLLC are able under the laws of the state of Nevada to act as qualified custodians and would be happy to assist in helping form and execute your Electronic Trusts and Last Wills and Testaments.
Free one-hour consultations are available (1) over the phone, (2) via video conferencing, (3) in the client’s own home, or (4) at one of our conveniently located offices.
Electronic mediums of visual communication, include Facetime, Facebook Video Messenger, Whatsapp, Skype, Zoom, GoToMeeting, and any other number of web-based platforms. Our staff is capable of assisting most people to access at least one of these programs, provided our client has access to the Internet via computer or smart phone equipped with video camera capabilities.
Please call us or submit an inquiry on our contact page here to learn more about how you can create an online trust or an online will. Be assured, even though you may be interested in virtual representation, and want to forgo in-person meetings, your case will personally be handled by and you will communicate directly with an attorney at our office.
You can learn more about our team members here.