Illinois Enacts Electronic Wills and Remote Witnesses Act
Published on 02 Aug 2021
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Illinois
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by Practical Law Trusts & Estates
PRACTICAL LAW
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02 Aug 2021
On July 26, 2021, Illinois enacted the Electronic Wills and Remote Witnesses Act, which authorizes the creation of electronic wills and remote signing and attestation of wills, creates procedures for probate of electronic and remotely attested wills, and gives statutory approval to emergency notary and witness guidelines created by executive order during the pandemic.
An electronic will is a will that is created and maintained as a tamper-evident electronic record (755 ILCS 6/1–20). To be valid under the Act, an electronic will must:
Be executed by either:
the testator; or
another person in the testator's presence and at the testator's direction. This person cannot be a beneficiary or a spouse or child of a beneficiary under the will.
Be attested to in the testator's presence by 2 or more credible witnesses. These witnesses must sign in the testator's presence after seeing the testator sign (or acknowledge the testator's own signature or direction of another person to sign).
Meet the remote attestation requirements if the will is remotely attested (see Remote Attestation of Wills).
Being in the same physical location as another person and close enough to see and know the other person is signing a document.
Being in a different physical location from another person, but able, using audio-video communication, to know the person is signing a document in real time.
A remote witness is a person attesting to a document who is in the presence of the signer or testator through audio-video communication. (755 ILCS 6/1–20.) Under the Act, an electronic will, a paper copy of an electronic will, or a traditional paper will may be attested to by a remote witness through audio-visual communication. A will attested to by a remote witness through audio-visual communication must:
Designate Illinois as it place of execution.
Be signed by the testator or by another person at the testator’s direction and in the testator’s presence (see Creation of Electronic Wills).
Be attested to in the testator's presence and by two or more credible witnesses who are located in the United States at the time of attestation.
If the will consists of separate signature pages, attestation clauses, or affidavits, the testator or a person appointed by the testator must attach those pages or a copy of those pages to the paper document containing the testator’s signature or a paper copy of the electronic will within 10 business days of the attestation.
The Act also provides procedures for remote witnessing of documents other than a will (755 ILCS 6/15–5).
Probate of Electronic or Remotely Attested Wills
The Act creates procedures and requirements for the admission of electronic wills to probate, including that:
A petition for probate must state that the electronic will is a tamper-evident electronic record and it has not been altered apart from the electronic signatures and other information that arises in the normal course of communication, storage, and display (755 ILCS 6/20–5).
For a paper copy of an electronic will to be admitted to probate it must be either:
certified under statutory process by the person who converts the electronic copy to a paper copy (755 ILCS 6/10–10); or
supported by sufficient evidence to overcome the presumption that the testator revoked the electronic will, which arises if neither an electronic will nor a certified paper copy of the electronic will can be located after a testator’s death (755 ILCS 6/5–10).
To admit a will attested to by a remote witness to probate, the attesting witnesses must make certain statements regarding the will execution either by court testimony, an attestation clause, or an affidavit. If the testator appointed a person to attach the witnesses' signed signature pages, attestation clause, or affidavits to the will, that person must also must make certain statements regarding the attachments of those pages by court testimony, a certified written statement, or an affidavit. (755 ILCS 6/20–20.)
The Act also creates requirements and procedures for:
Admission to probate or formal proof of wills attested to by remote witnesses during the COVID-19 emergency declaration (755 ILCS 6/20–25 and 755 ILCS 6/20–45).
During the COVID-19 emergency, the governor of Illinois issued Executive Order 2020-14, creating notary and witness guidelines allowing for remote witnessing and notarization during the COVID-19 emergency declaration, The Act gives statutory approval to these guidelines, extends them 30 days after the expiration of the governor's emergency declaration, and permits substantial compliance with the remote witnessing process. (755 ILCS 6/15–20.) This means that until 30 days after the expiration of the governor's emergency declaration, a notary may notarize a document remotely if:
The notary public performs the notarization via two-way audio-video communication technology.
The notary public is commissioned in Illinois and is physically located in Illinois while performing the notarial act.
The transaction follows any guidance or rules provided by the Secretary of State in existence on the date of notarization.