Estate Planning Has Not Yielded to the Electronic Age

The December 18, 2024 Wall Street Journal featured an article about how Americans have come to think that they can express their testamentary intent (i.e., their will) using audio, video or electronic devices (e.g., email or text). The story leads with a person indicating he wanted his estate to go to a brother using a video. He died a couple days later in a motorcycle accident. Alas, his intent, expressed electronically, was rejected by the Montana courts because it was not in proper form. His daughter received his estate because his purported “will” was invalid and that left him intestate.

Some states are modifying their laws to allow audio and video wills. There is a trend in all states to make a videographic recording contemporaneous with execution of a will or trust to help establish that the testator (the person making the will)  had the capacity to make the plan and was not under the undue influence of the beneficiaries named in the documents. Candidly, that can be a helpful tool in a world where many family members live far away and come to doubt how they were omitted or “shorted” in the estate plan.

There is actually a reason for this insistence on formality. A proper Pennsylvania will is written  and executed before two witnesses. To be self-authenticating, it should be confirmed by a notary public. There are hundreds of cases dealing with authentication and interpretation of written wills. Those cases provide precedent used by courts because people are not always clear about their intent even when they reduce their plans to writing and employ lawyers to do so.

The article in the Journal outlines the frustration of the burgeoning internet based “Do it Yourself Will Business.” These businesses put you through the matrix of typical estate planning questions and produce a will or simple trust for $100-750. Most have tailored their services to the requirements of the state you reside in. But one common frailty is that people living in Pennsylvania prepare a will designed for that state and then relocate to Florida or Arizona without ever asking attorneys in their new home state to make certain the “plan” works in the new locale.

If your estate is small and your beneficiaries are clearly defined, perhaps you can avoid formal legal input. But estate planning lawyers bring more than a law degree to the transaction. Competent ones have had experience with the dynamics of families and can spot potential complications the average person would not know to consider. You want your “business” to go to your daughter who has worked alongside you for a decade. But then you bought a building the business is run from and formed a separate entity to take title. Is that part of the “business?” You want your son to get the house at the shore but the mortgage you took to buy that house is recorded as a lien against your house in Pennsylvania. So, what was your intention? These are things best sorted out before you die.

Video is a welcome complement to show that you knew what you were doing when you decided on an estate plan. That video is intended not to convey your intent but to show that you were competent to make a will or trust. So that could include your recitation of date, time and place, current president, jeopardy questions or a recitation of the greek alphabet (alpha, beta, gamma….). Otherwise, electronics are a poor substitute for formal wills signed in blue ink. Chances are you have money because you paid attention to it during your lifetime. Don’t cheap out in the end and find yourself looking down family members in a yearlong battle over what you meant to do for those whom you love.