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REFERENCE TITLE: electronic wills and trusts. |
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State of Arizona House of Representatives Fifty-third Legislature Second Regular Session 2018
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HB 2471 |
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Introduced by Representative Leach
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AN ACT
amending Title 14, chapter 2, article 5, Arizona Revised Statutes, by adding section 14-2500; amending section 14‑2507, Arizona Revised Statutes; amending Title 14, chapter 2, article 5, Arizona Revised Statutes, by adding sections 14-2518, 14-2519, 14-2520, 14-2521, 14-2522, 14‑2523 and 14‑2524; amending sections 14‑3303 and 14‑10103, Arizona Revised Statutes; amending Title 14, chapter 11, article 2, Arizona Revised Statutes, by adding section 14‑10206; amending Title 14, chapter 11, article 4, Arizona Revised Statutes, by adding section 14-10419; relating to wills and trusts.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 14, chapter 2, article 5, Arizona Revised Statutes, is amended by adding section 14-2500, to read:
14-2500. Definitions
In this article, unless the context otherwise requires:
1. "Certified paper original" means a tangible document that contains the text of an electronic will and any self‑proving affidavit concerning the electronic will.
2. "Electronic notary public" has the same meaning prescribed in section 41‑351.
3. "Electronic record" means a record that is created, generated, sent, communicated, received or stored by electronic means.
4. "Electronic will" means an instrument, including a codicil, that is executed by a person as prescribed in section 14‑2518 and that disposes of the property of the person on or after the death of the person.
5. "Qualified custodian" means a person who agrees to serve as a qualified custodian of an electronic will.
Sec. 2. Section 14-2507, Arizona Revised Statutes, is amended to read:
14-2507. Revocation of will or electronic will; requirements
A. A testator may revoke a will or electronic will in whole or in part:
1. By executing a subsequent will or electronic will that revokes the previous will or electronic will or part expressly or by inconsistency.
2. By performing a revocatory act on the will if the testator performs the act with this intent or if another person performs the act in the testator's conscious presence and by the testator's direction. For the purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating or destroying the will or any part of it. A burning, tearing or canceling is a revocatory act on the will whether or not the burn, tear or cancellation touched any of the words on the will.
3. By canceling, rendering unreadable or obliterating an electronic will with the intention of revoking it by either of the following:
(a) The testator or a person in the presence and at the direction of the testator.
(b) If the electronic will is in the custody of a qualified custodian, the qualified custodian at the direction of the testator.
B. If a subsequent will or electronic will does not expressly revoke a previous will or electronic will, the execution of the subsequent will or electronic will wholly revokes the previous will or electronic will by inconsistency if the testator intended the subsequent will or electronic will to replace rather than supplement the previous will or electronic will.
C. The testator is presumed to have intended a subsequent will or electronic will to replace rather than supplement a previous will or electronic will if the subsequent will or electronic will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will or electronic will is revoked and only the subsequent will is operative on the testator's death.
D. The testator is presumed to have intended a subsequent will or electronic will to supplement rather than replace a previous will or electronic will if the subsequent will or electronic will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will or electronic will revokes the previous will or electronic will only to the extent the subsequent will or electronic will is inconsistent with the previous will or electronic will and each will is fully operative on the testator's death to the extent they are not inconsistent.
Sec. 3. Title 14, chapter 2, article 5, Arizona Revised Statutes, is amended by adding sections 14-2518, 14-2519, 14-2520, 14-2521, 14-2522, 14‑2523 and 14‑2524, to read:
14-2518. Electronic will; requirements; interpretation; definitions
A. An electronic will must meet all of the following requirements:
1. Be created and maintained in an electronic record.
2. Contain the date, the electronic signature of the testator and at least one of the following:
(a) An authentication characteristic of the testator.
(b) The electronic signature and electronic seal of an electronic notary public placed on the will in the presence of the testator and in whose presence the testator placed the testator's electronic signature on the electronic will.
B. A person who is eighteen years of age or older and who is of sound mind may make an electronic will.
C. Except as provided in this section and sections 14‑2519, 14‑2520, 14‑2521, 14‑2522 and 14‑2523, any question raised about the force, effect, validity and interpretation of an electronic will shall be determined in the same manner as a question regarding a will executed pursuant to section 14‑2502.
D. this section does not apply to a trust except a trust contained in an electronic will.
E. For the purposes of this section:
1. "authentication characteristic" means 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. Authentication characteristic includes a fingerprint, a retinal scan, voice recognition, facial recognition, a video recording, a digitized signature or any other commercially reasonable authentication using a unique characteristic of the person.
2. "Digitized signature" means a graphical image of a handwritten signature that is created, generated or stored by electronic means.
14-2519. Self-proved electronic will
In addition to the requirements of section 14‑2504, to be self‑proved, an electronic will must meet all of the following requirements:
1. The affidavits of attesting witnesses are incorporated as part of, attached to or logically associated with the electronic will.
2. The electronic will designates a qualified custodian to maintain custody of the electronic will.
3. Before being offered for probate or being reduced to a certified paper copy, the electronic will is under the custody of a qualified custodian at all times.
14-2520. Qualified custodian
A qualified custodian of an electronic will:
1. May not be an heir of the testator or a beneficiary or devisee under the electronic will.
2. Shall consistently employ and store electronic records of electonic wills in a system that protects electronic records from destruction, alteration or unauthorized access and detects any change to an electronic record.
3. Shall store in the electronic record of an electronic will each of the following:
(a) A photograph or other visual record of the testator and the attesting witnesses that was taken contemporaneously with the execution of the electronic will.
(b) A photocopy, photograph, facsimile or other visual record of any documentation that was taken contemporaneously with the execution of the electronic will and provides satisfactory evidence of the identities of the testator and the attesting witnesses, including documentation of the methods of identification used.
(c) An audio and video recording of the testator, attesting witnesses and notary public, as applicable, taken at the time the testator, each attesting witness and notary public, as applicable, placed the person's electronic signature on the electronic will.
4. Shall provide to any court that is hearing a MATTER INVOLVING an electronic will that is currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualifications of the qualified custodian and the policies and practices of the qualified custodian concerning the maintenance, storage and production of electronic wills.
14-2521. Qualified custodian; agreement to serve; ceasing service
A. A person shall execute a written statement affirmatively agreeing to serve as the qualified custodian of an electronic will before the person may serve as a qualified custodian.
B. Except for a person ceasing to serve as provided in subsection C, paragraph 1 of this section, a person may not cease serving as a qualified custodian until a successor qualified custodian executes the written statement prescribed by subsection A of this section.
C. A person serving as a qualified custodian may cease serving as a qualified custodian by:
1. If the person does not designate a successor qualified custodian, providing the testator with both of the following:
(a) A thirty‑day written notice that the person will cease to serve as a qualified custodian.
(b) The certified paper original of the electonic will and all records concerning the electronic will.
2. If the person designates a successor qualified custodian, by providing all of the following:
(a) A thirty‑day written notice that the person will cease to serve as a qualified custodian to the testator and the successor qualified custodian.
(b) To the successor qualified custodian, the electronic record of the electronic will and an affidavit that states all of the following:
(i) That the person is eligible to act as a qualified custodian in this State and is the qualified custodian designated by the testator in the electronic will or was designated to act in that capacity by another qualified custodian pursuant to this paragraph.
(ii) That an electronic record was created at the time the testator executed the electronic will.
(iii) That the electronic record has been in the custody of one or more qualified custodians since the execution of the electronic will and has not been altered since the time it was created.
(iv) The identity of all qualified custodians who have had custody of the electronic record since the execution of the electronic will.
D. For the purposes of making the affidavit prescribed by subsection C, paragraph 2, subdivision (b) of this section, the person may rely conclusively on any affidavits provided by a predecessor qualified custodian if all of these affidavits are provided to the successor qualified custodian.
E. If a testator designates a successor qualified custodian in a writing executed with the same formalities required for the execution of an electronic will and the successor qualified custodian executes the written statement prescribed by subsection A of this section, the person serving as qualified custodian shall cease serving in that capacity and shall provide the successor qualified custodian with both of the following:
1. The electronic record.
2. The affidavit prescribed by subsection C, paragraph 2, subdivision (b) of this section.
F. If a qualified custodian is an entity, an affidavit of a duly authorized officer or agent of the entity constitutes the affidavit of the qualified custodian.
14-2522. Electronic record; access; destruction
A. A qualified custodian shall provide access to or information concerning the electronic will in the electronic record or the certified paper original of the electronic will only to:
1. The testator or another person as directed by the written instructions of the testator.
2. After the death of the testator, the nominated personal representative of the testator or any interested person.
B. A qualified custodian may destroy the electronic record any time:
1. Five or more years after the admission of any will of the testator to probate.
2. Five or more years after the revocation of the electronic will.
3. Five or more years after ceasing to serve as the qualified custodian of the electronic record of the electronic will.
4. Ten or more years after the death of the testator.
5. One hundred fifty years after the execution of the electronic will.
C. A qualified custodian shall cancel, render unreadable or obliterate the electronic record if the testator directs the qualified custodian to do so in a writing executed with the same formalities required for the execution of an electronic will.
14-2523. Certified paper original of electronic record; affidavits
A. On the creation of a certified paper original of an electronic will, if the electronic will has always been in the custody of a qualified custodian, the qualified custodian shall state in an affidavit all of the following:
1. That the qualified custodian is eligible to act as a qualified custodian in this State and is the qualified custodian designated by the testator in the electronic will or was designated to act in that capacity by another qualified custodian pursuant to section 14‑2521, subsection C, paragraph 2.
2. That an electronic record was created at the time the testator executed the electronic will.
3. That the electronic record has been in the custody of one or more qualified custodians since the execution of the electronic will and has not been altered since the time it was created.
4. The identity of all qualified custodians who have had custody of the electronic record since the execution of the electronic will.
5. That the certified paper original is a true, correct and complete tangible manifestation of the electronic will.
6. That the records described in section 14‑2520, paragraph 3 are in the custody of the qualified custodian.
B. On the creation of a certified paper original of an electronic will, if the electronic will has not always been in the custody of a qualified custodian, the person who discovered the electronic will and the person who reduced the electronic will to the certified paper original shall each state in an affidavit all of the following to the best of each person's knowledge:
1. When the electronic will was created, if not indicated in the electronic will.
2. When, how and by whom the electronic will was discovered.
3. The identity of each person who has had access to the electronic will.
4. The method in which the electronic will was stored and the safeguards in place to prevent alterations to the electronic will.
5. Whether the electronic will has been altered since its execution.
6. That the certified paper original is a true, correct and complete tangible manifestation of the electronic will.
C. For the purposes of making the affidavit prescribed by subsection A of this section, the qualified custodian may rely conclusively on any affidavits provided by a predecessor qualified custodian.
14-2524. Video recording or other electronic record; admissibility
Subject to court rule, a video recording or other electronic record is admissible as evidence of the following:
1. The proper execution of a will.
2. The intentions of the testator.
3. The mental state or capacity of the testator.
4. The authenticity of the will.
5. Matters that are determined by the court to be relevant to the probate of a will.
Sec. 4. Section 14-3303, Arizona Revised Statutes, is amended to read:
14-3303. Informal probate; proof and findings required
A. In an informal proceeding for original probate of a will, the registrar shall determine whether:
1. The application is complete.
2. The applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief.
3. The applicant appears from the application to be a person permitted to apply as provided in section 14‑3301, subsection A.
4. On the basis of the statements in the application, venue is proper.
5. An original, duly executed and apparently unrevoked will is in the registrar's possession. An original will includes a certified paper original of an electronic will.
6. Any notice required by section 14‑3204 has been given and that the application is not within section 14‑3304.
7. It appears from the application that the time limit for original probate has not expired.
B. The application shall be denied if it indicates that a personal representative has been appointed in another county of this state or except as provided in subsection D of this section, if it appears that this or another will of the decedent has been the subject of a previous probate order.
C. A will which that appears to have the required signatures and which that contains an attestation clause showing that requirements of execution under chapter 2, article 5 of this title have been met shall be probated without further proof. In other cases, the registrar may assume execution if the will appears to have been properly executed, or he may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.
D. Informal probate of a will which that has been previously probated in another jurisdiction may be granted at any time upon on written application by any interested person, together with deposit of a certified copy of the will and of the statement probating it from the office or court where it was first probated.
E. A will from a place which that does not provide for probate of a will after death and which that is not eligible for probate under subsection A of this section may be probated in this state upon on receipt by the registrar of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.
Sec. 5. Section 14-10103, Arizona Revised Statutes, is amended to read:
14-10103. Definitions
In this chapter, unless the context otherwise requires:
1. "Action", with respect to an act of a trustee, includes a failure to act.
2. "Beneficiary" means a person who either:
(a) Has a present or future beneficial interest in a trust, vested or contingent.
(b) In a capacity other than that of a trustee, holds a power of appointment over trust property.
3. "Charitable trust" means a trust, or portion of a trust, created for a charitable purpose described in section 14‑10405, subsection A.
4. "Conservator" means a person appointed by the court to administer the estate of a minor or an adult.
5. "Distributee" means a person who receives property from a trust other than as a creditor or purchaser.
6. "Electronic record" has the same meaning prescribed in section 44‑7002.
7. "Electronic signature" has the same meaning prescribed in section 44‑7002.
8. "Electronic trust instrument" means a trust instrument that meets the requirements prescribed in section 14‑10419.
6. 9. "Environmental law" means a federal, state or local law, rule, regulation or ordinance relating to protection of the environment.
7. 10. "Guardian" means a person appointed by the court to make decisions regarding the support, care, education, health and welfare of a minor or an adult. Guardian does not include a guardian ad litem.
8. 11. "Interests of the beneficiaries" means the beneficial interests provided in the terms of the trust.
9. 12. "Internal revenue code" has the same meaning prescribed in section 43‑105.
10. 13. "Jurisdiction", with respect to a geographic area, includes a state or country.
11. 14. "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation or any other legal or commercial entity.
12. 15. "Power of withdrawal" means a presently exercisable general power of appointment other than a power exercisable either:
(a) By a trustee and limited by an ascertainable standard.
(b) By a person other than in a fiduciary capacity and only on the consent of the trustee or a person holding an adverse interest.
13. 16. "Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest in anything that may be the subject of ownership.
14. 17. "Qualified beneficiary" means a beneficiary who, on the date the beneficiary's qualification is determined:
(a) Is a distributee or permissible distributee of trust income or principal.
(b) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subdivision (a) of this paragraph terminated on that date.
(c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.
15. 18. "Revocable", as applied to a trust or a portion of a trust, means revocable by a settlor without the consent of any person, including the trustee or a person who holds an interest that is either adverse or not adverse.
16. 19. "Settlor" means a person, including a testator, who creates or contributes property to a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion.
17. 20. "Special needs trust" means a trust established for the benefit of one or more persons with disabilities if one of the purposes of the trust, expressed in the trust instrument or implied from the trust instrument, is to allow the person with a disability to qualify or continue to qualify for public, charitable or private benefits that might otherwise be available to the person with a disability. The existence of one or more remainder beneficiaries without a disability of the trust shall not disqualify it as a special needs trust for the purposes of this paragraph. For the purposes of this paragraph, "person with a disability" means an individual who has a disability pursuant to 42 United States Code section 1382c.
18. 21. "Spendthrift provision" means a term of a trust that restrains either voluntary or involuntary transfer of a beneficiary's interest.
19. 22. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. State includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.
20. 23. "Terms of a trust" means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.
21. 24. "Trust instrument" means an instrument executed by the settlor that contains terms of the trust, including any amendments to that trust.
22. 25. "Trustee" includes an original, additional and successor trustee and a cotrustee.
26. "Writing" or "written" includes the use of an electronic trust or electronic will.
Sec. 6. Title 14, chapter 11, article 2, Arizona Revised Statutes, is amended by adding section 14-10206, to read:
14-10206. Video recording or other electronic record; admissibility; execution in this state
Subject to court rule, a video recording or other electronic record is admissible as evidence of the following:
1. The proper execution of a trust instrument.
2. The intentions of the settlor.
3. The mental state or capacity of the settlor.
4. The authenticity of the trust instrument.
5. Matters that are determined by the court to be relevant to the administration of a trust.
Sec. 7. Title 14, chapter 11, article 4, Arizona Revised Statutes, is amended by adding section 14-10419, to read:
14-10419. Electronic trust instrument requirements; execution in this state
A. An electronic trust instrument must:
1. Contain the electronic signature of the settlor.
2. Be written, created and stored in an electonic record.
3. Meet the requirements of this article for a valid trust.
B. An electronic trust instrument is deemed to be executed in this state if either of the following applies:
1. The electronic trust instrument is maintained by the:
(a) Settlor at the settlor's place of business in this state or at the settlor's residence in this state.
(b) Trustee at the trustee's place of business in this state or at the trustee's residence in this state.
2. 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.
C. This section does not apply to a testamentary trust.