Compare Versions


PDF |Add To My Favorites |Track Bill | print page

AB-1667 Electronic wills.(2019-2020)



Current Version: 08/10/20 - Amended Senate         Compare Versions information image


AB1667:v93#DOCUMENT

Amended  IN  Senate  August 10, 2020
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 6113, 6120, 8002, 8200, and 8220 of, and to add Sections 6110.5 and 6110.6 to, add and repeal Section 6110.4 of 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.
This bill would require the California Law Revision Commission, on or before September 30, 2022, to deliver a study to the Legislature regarding the feasibility of electronic wills, as specified.

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.

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: YESNO  

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


SECTION 1.

 Section 6110.4 is added to the Probate Code, to read:

6110.4.
 (a) It is the intent of the Legislature to evaluate the merits of electronic wills and whether the Legislature should adopt a statutory scheme that recognizes electronic wills.
(b) On or before September 30, 2022, the California Law Revision Commission shall deliver to the Legislature a study regarding the feasibility of electronic wills. The study shall include, at a minimum, a discussion of all of the following:
(1) How electronic wills are treated by the Uniform Law Commission and by other states and countries.
(2) Case studies involving electronic wills or other electronic testamentary instruments, to the extent that information is accessible and can be feasibly obtained.
(3) Common issues relating to electronic wills, including, but not limited to, all of the following:
(A) Formation, including requirements for electronic signatures.
(B) Authentication, including remote online notarization.
(C) Witnessing, including remote online witnessing.
(D) Storage.
(E) Custodianship.
(F) Delivery and presentation to the court.
(G) The types of evidence a court may consider in authenticating the will.
(H) Codicils.
(I) Revocation.
(J) Any other aspect of probate law and the law of wills that the commission determines to be reasonable to study issues relating to electronic wills, including, but not limited to, all of the following:
(i) The application of the harmless error rule.
(ii) Electronic expressions of testamentary intent that do not meet formalities.
(iii) Risk of fraud or undue influence when compared to traditional wills.
(c) If the commission determines that adopting a statutory scheme that recognizes electronic wills is prudent and does not pose unnecessary risks of fraud, the study shall recommend a specific legislative proposal for a comprehensive statutory scheme for recognizing electronic wills in California.
(d) A report to be submitted pursuant to subdivision (b) or (c) shall be submitted in compliance with Section 9795 of the Government Code.
(e) This section shall remain in effect only until January 1, 2025, and as of that date is repealed.