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AB-1667 Electronic wills.(2019-2020)

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Date Published: 06/26/2020 04:00 AM
AB1667:v94#DOCUMENT

Amended  IN  Senate  June 25, 2020
Amended  IN  Senate  April 24, 2020
Amended  IN  Senate  June 28, 2019
Amended  IN  Assembly  April 24, 2019
Amended  IN  Assembly  March 18, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1667


Introduced by Assembly Member Santiago

February 22, 2019


An act to amend Sections 6110, 6113, 6120, 8002, 8200, and 8220 of, and to add Sections 6106 and 6110.5 and 6110.6 to, the Probate Code, relating to wills.


LEGISLATIVE COUNSEL'S DIGEST


AB 1667, as amended, Santiago. Electronic wills.
Existing law governs the execution of wills. Existing law generally requires a will to be in writing and to satisfy specified requirements of the Probate Code, including being signed by a testator, another person at the testator’s direction, or a conservator pursuant to court order. A will that fails to meet those requirements may be valid as a holographic will, as specified. Existing law also allows for the execution of a California statutory will. Existing law specifies the methods for a testator to revoke a will or part thereof. Existing law requires the custodian of a will to deliver the will to the clerk of the superior court in the county in which the estate may be administered and a copy to the person named in the will as executor and establishes a fee for delivering the will to the clerk of the superior court.
This bill, for the estates of decedents with a date of death on or after January 1, 2021, would provide that a will executed in compliance with the provisions applicable to written wills is not invalid solely because it is written or stored in an electronic record, as defined, or signed by the testator or witnesses using an electronic signature, as defined. The bill would also provide for the estates of decedents with a date of death on or after January 1, 2021, that a will that was not executed in compliance with specified requirements relating to witnesses to a will to be treated as if the will was executed in compliance, if the proponent of the will establishes by clear and convincing evidence that the testator intended the will to constitute the testator’s will. The bill would separately authorize an electronic record to be deemed a valid will if the proponent of the will establishes by clear and convincing evidence that, at the time the testator finalized the will, the testator intended the will to constitute the testator’s will. The bill would provide the methods for a testator to revoke a will that is written, signed, or stored in an electronic record, including, among other methods, a physical act by the testator performed on a copy of the will stored in an electronic record that shows the testator’s intent to revoke the will by clear and convincing evidence. The bill would clarify that the custodian of a will stored in an electronic record is required to comply with the same requirements described above for other wills. The bill would also require the custodian of a will stored in an electronic record to certify the copy of the will by attaching to the copy a declaration, under penalty of perjury, that the copy is a complete, true, and accurate copy of the original will as entrusted to the custodian. By expanding the crime of perjury, this bill would impose a state-mandated local program.

Existing law specifies the methods of revoking a will or part thereof, including by a subsequent will that revokes a prior will either expressly or by inconsistency.

This bill would provide for the revocation of a will that is written, signed, or stored in an electronic record, by a physical act performed by the testator or another person in the testator’s presence and at the testator’s direction on a copy of the will stored in an electronic record or on a printed copy of an electronic will. The bill would require the testator’s intent to revoke a will in this manner to be shown by clear and convincing evidence.

Existing law requires the custodian of a will to deliver the will to the clerk of the superior court in the county in which the estate may be administered and a copy to the person named in the will as executor and establishes a fee for delivering the will to the clerk of the superior court.

This bill would clarify that the same requirements apply to the custodian of a will stored in an electronic record, including payment of the fee. The bill would also require the custodian of a will stored in an electronic record to certify the copy of the will by attaching to the copy a declaration, under penalty of perjury, that the copy is a complete, true, and accurate copy of the original will as entrusted to the custodian. By expanding the definition of the crime of perjury, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

The Legislature finds and declares all of the following:

(a)According to the American Bar Association, 55 percent of Americans die without a will or estate plan. That number has increased over time. The reasons vary, ranging from procrastination to thinking it is a difficult process.

(b)Increasingly, however, people are making their wills electronically. The Uniform Law Commission (ULC) found cases where people are making wills using tablets and other electronic devices that are handy or comfortable. The ULC also found that the downside of relying on existing statutes for electronic wills is that the results may be haphazard with no clear policy.

(c)While it was easy to delay estate planning under normal circumstances, the rapid spread of novel coronavirus(COVID-19) has changed that, not only for those staying home, but for those on the front lines or who have contracted the disease and are under medical care. Observing social distancing makes executing a paper will much more difficult.

(d)Legislation is needed to increase access to inexpensive and convenient methods for executing valid wills and to simplify attorneys’ efforts to assist with the execution process. Legislation should make the benefits of the legal system more accessible to vulnerable populations and those who have historically been underserved by the legal system, provide decedents’ families more certainty in property succession, and provide clear guidance to the courts regarding electronic wills. This should decrease estate disputes, save time, and conserve tax dollars.

(e)It is the intent of the Legislature, therefore, to ensure the State of California has a clear policy regarding the making of electronic wills.

SEC. 2.Section 6106 is added to the Probate Code, to read:
6106.

For the purposes of this part and Part 2 (commencing with Section 8000) of Division 7, the following definitions apply:

(a)“Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(b)“Electronic record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a form perceivable as text.

(c)“Electronic signature” means an electronic symbol or process attached to, or logically associated with, an electronic record and executed or adopted by a person with the intent to sign the electronic record.

SEC. 3.Section 6110 of the Probate Code is amended to read:
6110.

(a)Except as provided in this part, a will shall be in writing and satisfy the requirements of this section.

(b)The will shall be signed by one of the following:

(1)By the testator.

(2)In the testator’s name by some other person in the testator’s presence and by the testator’s direction.

(3)By a conservator pursuant to a court order to make a will under Section 2580.

(c)(1)Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.

(2)If a will, including a will signed with an electronic signature or stored as an electronic record, was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.

SEC. 4.Section 6110.5 is added to the Probate Code, to read:
6110.5.

(a)A will that complies with the requirements of this part is not invalid solely because it is written or stored in an electronic record, or signed by the testator or witnesses using an electronic signature.

(b)This section applies to the estates of decedents with a date of death on or after January 1, 2021.

SECTION 1.

 Section 6110.5 is added to the Probate Code, to read:

6110.5.
 (a) For the purposes of this part and Part 2 (commencing with Section 8000) of Division 7:
(1) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(2) “Electronic signature” means an electronic symbol or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record and the electronic signature embodies all of the following attributes:
(A) It is unique to the person using it.
(B) It is capable of verification.
(C) It is under the sole control of the person using it.
(D) It is linked to data in such a manner that if the data are changed, the digital signature is invalidated.
(3) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a form perceivable as text.
(b) (1) A will that complies with the requirements of this part is not invalid solely because it is written or stored in an electronic record, or signed by the testator and witnesses using electronic signatures.
(2) If a will was not executed in compliance with paragraph (1) of subdivision (c) of Section 6110, the will shall be treated as if it was executed in compliance with that section if the proponent of the will establishes by clear and convincing evidence that the testator signed the will, and at the time the testator signed the will, the testator intended the will to constitute the testator’s will.
(c) This section applies to the estates of decedents with a date of death on or after January 1, 2021.

SEC. 2.

 Section 6110.6 is added to the Probate Code, to read:

6110.6.
 Notwithstanding Sections 6110 and 6110.5, but subject to the other provisions of this code, an electronic record may be deemed to be a valid will if the proponent of the will establishes by clear and convincing evidence that, at the time the testator finalized the will, the testator intended the will to constitute the testator’s will.

SEC. 3.

 Section 6113 of the Probate Code is amended to read:

6113.
 A written will is validly executed if its execution complies with any of the following:
(a) The will is executed in compliance with Section 6110 6110, 6110.5, or 6111 or Chapter 6 (commencing with Section 6200) (California statutory will) or Chapter 11 (commencing with Section 6380) (Uniform International Wills Act).
(b) The execution of the will complies with the law at the time of execution of the place where the will is executed.
(c) The execution of the will complies with the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

SEC. 5.SEC. 4.

 Section 6120 of the Probate Code is amended to read:

6120.
 (a) A will or part thereof is revoked by any of the following:

(a)

(1) A subsequent will that revokes the prior will or part expressly or by inconsistency.

(b)

(2) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator’s presence and by the testator’s direction.

(c)When the will is written, signed, or stored in an electronic record, by a physical act performed by the testator or another person in the testator’s presence and at the testator’s direction on a copy of the will stored in an electronic record or on a printed copy of an electronic will. The testator’s intent to revoke the will pursuant to this subdivision shall be shown by clear and convincing evidence.

(b) A will that is written, signed, or stored in an electronic record is revoked by any of the following:
(1) A subsequent will that revokes the prior will or part expressly or by inconsistency.
(2) (A) A physical act performed on a copy of the will stored in an electronic record or on a printed copy of an electronic will by either of the following:
(I) The testator.
(II) Another person in the testator’s presence and at the testator’s direction.
(B) The testator’s intent to revoke the will shall be shown by clear and convincing evidence.

SEC. 6.SEC. 5.

 Section 8002 of the Probate Code is amended to read:

8002.
 (a) The petition shall contain all of the following information:
(1) The date and place of the decedent’s death.
(2) The street number, street, and city, or other address, and the county, of the decedent’s residence at the time of death.
(3) The name, age, address, and relation to the decedent of each heir and devisee of the decedent, so far as known to, or reasonably ascertainable by, the petitioner.
(4) The character and estimated value of the property in the estate.
(5) The name of the person for whom appointment as personal representative is petitioned.
(b) If the decedent left a will:
(1) The petitioner shall attach to the petition a photographic or printed copy of the will. In the case of a holographic will or other will of which material provisions are handwritten, the petitioner shall also attach a typed copy of the will.
(2) If the will is in a foreign language, the petitioner shall attach an English language translation. On admission of the will to probate, the court shall certify to a correct translation into English, and the certified translation shall be filed with the will.
(3) The petition shall state whether the person named as executor in the will consents to act or waives the right to appointment.

SEC. 7.SEC. 6.

 Section 8200 of the Probate Code is amended to read:

8200.
 (a) Unless a petition for probate of the will is earlier filed, the custodian of a will shall, within 30 days after having knowledge of the death of the testator, do both of the following:
(1) Deliver the will, personally or by registered or certified mail, to the clerk of the superior court of the county in which the estate of the decedent may be administered.
(2) Deliver a copy of the will pursuant to Section 1215 to the person named in the will as executor, if the person’s whereabouts is known to the custodian, or if not, to a person named in the will as a beneficiary, if the person’s whereabouts is known to the custodian.

(b)(1)The custodian of a will signed with an electronic signature or stored in an electronic record shall deliver a certified copy of the will to the clerk of the superior court and to the person named in the will as executor, as required in subdivision (a). The certified copy shall include any affidavit attached to, or associated with, the will and stored in the electronic record.

(2)The custodian shall certify the copy of the will by attaching to the copy a declaration, under penalty of perjury, that the copy is a complete, true, and accurate copy of the original will as entrusted to the custodian.

(3)For purposes of this section, a person is the custodian of a will signed with an electronic signature or stored in an electronic record when the person affirmatively takes possession of the will, whether as stored in an electronic record or as a printed copy of the will, with knowledge that it is the testator’s will.

(b) The custodian of a will executed in compliance with Section 6110.5 or 6110.6 shall deliver a certified copy of the will to the clerk and to the person named in the will as executor or as a beneficiary as required by subdivision (a). The certified copy shall include any affidavit attached to or associated with the will.
(1) The custodian shall certify the copy of the will by attaching to the copy a declaration under penalty of perjury that the copy is a complete, true, and accurate copy of the original will as entrusted to the custodian.
(2) For purposes of this part, the “custodian” of a will executed in compliance with Section 6110.5 means a person who affirmatively takes possession of that will, whether as stored in an electronic record or as a printed copy of the will, with knowledge that it is the will of the testator.
(c) A custodian of a will who fails to comply with the requirements of this section shall be liable for all damages sustained by any person injured by the failure.
(d) The clerk shall release a copy of a will delivered under this section for attachment to a petition for probate of the will or otherwise on receipt of payment of the required fee and either a court order for production of the will or a certified copy of a death certificate of the decedent.
(e) The fee for delivering a will to the clerk of the superior court pursuant to paragraph (1) of subdivision (a) or subdivision (b) shall be as provided in Section 70626 of the Government Code. If an estate is commenced for the decedent named in the will, the fee for a will delivered to the court pursuant to paragraph (1) of subdivision (a) or subdivision (b) shall be reimbursable from the estate as an expense of administration.

SEC. 8.SEC. 7.

 Section 8220 of the Probate Code is amended to read:

8220.
 Unless there is a contest of a will:
(a) The will may be proved on the evidence of one of the subscribing witnesses only, if the evidence shows that the will was executed in all particulars as prescribed by law.
(b) Evidence of execution of a will may be received by an affidavit of a subscribing witness to which there is attached a photographic or printed copy of the will, or by an affidavit in the original will that includes or incorporates the attestation clause.
(c) If no subscribing witness resides in the county, but the deposition of a witness can be taken elsewhere, the court may direct the deposition to be taken. On the examination, the court may authorize a photographic or printed copy of the will to be made and presented to the witness, and the witness may be asked the same questions with respect to the photographic or printed copy as if the original will were present.

SEC. 9.SEC. 8.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.