SB 90: "An Act relating to wills and the probate of wills; relating to the making, witnessing, self-proving, revocation, and probate of wills by electronic means; relating to the choice of law for execution of wills; relating to the certification of copies of wills; relating to the establishment of the validity of a will before death; and providing for an effective date."
00 SENATE BILL NO. 90 01 "An Act relating to wills and the probate of wills; relating to the making, witnessing, 02 self-proving, revocation, and probate of wills by electronic means; relating to the choice 03 of law for execution of wills; relating to the certification of copies of wills; relating to the 04 establishment of the validity of a will before death; and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 13.06.050(62) is amended to read: 07 (62) "will" includes an electronic will, a codicil, and a testamentary 08 instrument that merely appoints an executor, revokes or revises another will, 09 nominates a guardian, or expressly excludes or limits the right of an individual or class 10 to succeed to property of the decedent passing by intestate succession. 11 * Sec. 2. AS 13.06.050 is amended by adding new paragraphs to read: 12 (63) "electronic presence," with respect to two or more individuals in 13 different locations, means the use of electronic means that enables the individuals, 14 during the actual time when the individuals are engaging in the activities, to
01 communicate, to maintain visual and audio contact, and, when applicable, to facilitate 02 communication between or among individuals, including individuals who have a 03 visual, hearing, or speech impairment; 04 (64) "electronic will" means a will in which the text, the signature of 05 the testator, or the signature of a witness is provided by electronic means. 06 * Sec. 3. AS 13.06.068(c) is amended to read: 07 (c) A will disposing of personal property, wherever situated, or real property 08 situated in this state made within or outside this state by a domiciliary or 09 nondomiciliary of the state where the property is situated, is formally valid and 10 admissible to probate in this state if the will is a record that is readable as text at the 11 time of signing [IN WRITING] and signed by the testator and otherwise executed and 12 attested to under the local law of 13 (1) this state; 14 (2) the jurisdiction where the testator was physically located when 15 the testator signed the will [WAS EXECUTED AT THE TIME OF EXECUTION]; 16 or 17 (3) the jurisdiction where the testator was domiciled, either at the time 18 the testator signed the will [OF EXECUTION] or at death. 19 * Sec. 4. AS 13.12.502 is amended to read: 20 Sec. 13.12.502. Execution; witnessed wills; holographic wills. (a) Except as 21 provided in (b) of this section, AS 13.06.068, AS 13.12.506, and 13.12.513, a will 22 must be 23 (1) a record that is readable as text at the time of signing under (2) 24 of this subsection [IN WRITING]; 25 (2) signed by the testator or in the testator's name by another individual 26 in the testator's conscious physical or electronic presence and by the testator's 27 direction; and 28 (3) signed by at least two individuals, each of whom is in the physical 29 or electronic presence of the testator at the time of signing and signs within a 30 reasonable time after witnessing [THE WITNESS WITNESSES] either the signing of 31 the will as described in (2) of this subsection or the testator's acknowledgment of that
01 signature or the will. 02 (b) Except as provided in AS 13.06.068, a will that does not comply with (a) 03 of this section is valid as a holographic will, whether or not witnessed, if the signature 04 and material portions of the record [DOCUMENT] are in the testator's handwriting or 05 readable as text. 06 * Sec. 5. AS 13.12.504(a) is amended to read: 07 (a) A will may be simultaneously executed, attested, and made self-proved, by 08 acknowledgment of the will by the testator and affidavits of the witnesses, each made 09 in the physical or electronic presence of [BEFORE] an officer authorized to 10 administer oaths under the laws of the state where the testator is physically located 11 or in this state [IN WHICH EXECUTION OCCURS] and evidenced by the officer's 12 certificate, under official seal, in substantially the following form: 13 I, _____________, the testator, sign my name to this instrument this _____ day 14 of _____, and being first duly sworn, do hereby declare to the undersigned 15 authority that I sign and execute this instrument as my will and that I sign it 16 willingly (or willingly direct another to sign for me), that I execute it as my 17 free and voluntary act for the purposes expressed in the will, and that I am 18 eighteen years of age or older, of sound mind, and under no constraint or 19 undue influence. 20 ___________________________ 21 Testator 22 We, _____________, _____________, the witnesses, sign our names to this 23 instrument, being first duly sworn, and do hereby declare to the undersigned 24 authority that the testator signs and executes this instrument as the testator's 25 will and that the testator signs it willingly (or willingly directs another to sign 26 for the testator), and that each of us, in the physical or electronic presence 27 [AND HEARING] of the testator, hereby signs this will as witness to the 28 testator's signing, and that to the best of our knowledge the testator is eighteen 29 years of age or older, of sound mind, and under no constraint or undue 30 influence. 31 ___________________________
01 Witness 02 ___________________________ 03 Witness 04 05 State of _____________ 06 _____________Judicial District 07 Subscribed, sworn to, and acknowledged in my physical or electronic 08 presence [BEFORE ME] by _____________, the testator, and subscribed and 09 sworn to before me by _____________, and _____________, witnesses 10 [WITNESS], this _____ day of _____. 11 (Seal) 12 ___________________________ 13 (Signed) 14 ___________________________ 15 (Official capacity of officer) 16 * Sec. 6. AS 13.12.504(b) is amended to read: 17 (b) An attested will may be made self-proved at any time after its execution by 18 the acknowledgment of the will by the testator and the affidavits of the witnesses, each 19 made in the physical or electronic presence of [BEFORE] an officer authorized to 20 administer oaths under the laws of the state in which the testator is physically located 21 or in this state [ACKNOWLEDGMENT OCCURS] and evidenced by the officer's 22 certificate, under the official seal, attached or annexed to the will in substantially the 23 following form: 24 State of _____________ 25 _____________Judicial District 26 We, ____________, ____________, and ____________, the testator and the 27 witnesses, respectively, whose names are signed to the attached or foregoing 28 instrument, being first duly sworn, do hereby declare to the undersigned 29 authority that the testator signed and executed the instrument as the testator's 30 will and that the testator had signed willingly (or willingly directed another to 31 sign for the testator), and that the testator executed it as the testator's free and
01 voluntary act for the purposes expressed in the will, and that each of the 02 witnesses, in the physical or electronic presence [AND HEARING] of the 03 testator, signed the will as witness and that to the best of the witnesses' 04 knowledge the testator was at that time eighteen years of age or older, of sound 05 mind, and under no constraint or undue influence. 06 ___________________________ 07 Testator 08 ___________________________ 09 Witness 10 ___________________________ 11 Witness 12 Subscribed, sworn to, and acknowledged in my physical or electronic 13 presence [BEFORE ME] by ____________, the testator, and subscribed and 14 sworn to before me by ____________, and ____________, witnesses, this 15 _____ day of _____. 16 (Seal) 17 ___________________________ 18 (Signed) 19 ___________________________ 20 (Official capacity of officer) 21 * Sec. 7. AS 13.12.506 is amended to read: 22 Sec. 13.12.506. Choice of law as to execution. Except as provided by 23 AS 13.06.068, a [WRITTEN] will is valid if executed in compliance with 24 AS 13.12.502 or if its execution complies with the law at the time of execution of the 25 place where the will is executed, which is the place where the testator is physically 26 located when the testator signs the will, or of the law of the place where, at the time 27 of execution or at the time of death, the testator is domiciled, has a place of abode, or 28 is a national. 29 * Sec. 8. AS 13.12.507(a) is amended to read: 30 (a) A will or a part of a will is revoked 31 (1) by executing a subsequent will that revokes the previous will or
01 part expressly or by inconsistency; or 02 (2) by performing a revocatory act on the will, if the testator performed 03 the act with the intent and for the purpose of revoking the will or part of the will or if 04 another individual performed the act in the testator's conscious physical or electronic 05 presence and by the testator's direction; in this paragraph, "revocatory act on the will" 06 includes burning, tearing, canceling, obliterating, deleting, or destroying the will or 07 any part of it; a "revocatory act on the will" includes a burning, tearing, or canceling 08 whether or not the burn, tear, or cancellation touched any of the words on the will. 09 * Sec. 9. AS 13.12 is amended by adding a new section to article 5 to read: 10 Sec. 13.12.518. Certification of will copy. (a) An individual may create a 11 certified paper copy of a will by affirming under penalty of perjury that a paper copy 12 of the will is a complete, true, and accurate copy of the will. If the will is made self- 13 proving, the certified paper copy of the will must include a copy of the self-proving 14 affidavits. 15 (b) A certification that is substantially similar to the following qualifies as a 16 certification under (a) of this section: 17 I, (name of person making the certification) certify under penalty 18 of perjury that the paper copy of the will of (name of testator) dated 19 (date) attached to this certification is a complete, true, and 20 accurate copy of the will of (name of testator), and that I personally 21 compared this paper copy to the nonelectronic or electronic original of the will. 22 * Sec. 10. AS 13.12.545 is amended to read: 23 Sec. 13.12.545. Contents of petition for will validity. A petition under 24 AS 13.12.530 must contain 25 (1) a statement that a copy of the will has been filed with the court; the 26 copy may be an electronic record; 27 (2) a statement that the will is in writing or is an electronic will; 28 (3) a statement that the will was signed by the testator, or was signed 29 in the testator's name by another person in the testator's conscious physical or 30 electronic presence and at the testator's direction; 31 (4) in the case of a witnessed will, a statement that the will was signed
01 by at least two individuals, each of whom signed within a reasonable time after 02 witnessing the signing of the will or the testator's acknowledgment of the signature on 03 the will; 04 (5) in the case of a holographic will, a statement that the signature and 05 material portions of the will are in the testator's handwriting or in a record that is 06 readable as text; 07 (6) a statement that the will was executed with testamentary intent; 08 (7) a statement that the testator had testamentary capacity; 09 (8) a statement that the testator was free from undue influence and 10 duress and executed the will in the exercise of the testator's free will; 11 (9) a statement that the execution of the will was not the result of fraud 12 or mistake; 13 (10) the names and addresses of the testator, the testator's spouse, the 14 testator's children, the testator's heirs, the personal representatives nominated in the 15 will, and the devisees under the will; 16 (11) if minors, the ages of the testator's children, the testator's heirs, 17 and the devisees under the will, as far as known or ascertainable with reasonable 18 diligence by the petitioner; 19 (12) a statement that the will has not been revoked or modified; and 20 (13) a statement that the testator is familiar with the contents of the 21 will. 22 * Sec. 11. AS 13.16.080(a) is amended to read: 23 (a) Applications for informal probate or informal appointment shall be 24 directed to the registrar, and verified by the applicant to be accurate and complete to 25 the best of the applicant's knowledge and belief as to the following information: 26 (1) every application for informal probate of a will or for informal 27 appointment of a personal representative other than a special or successor 28 representative, must contain the following: 29 (A) a statement of the interest of the applicant; 30 (B) the name and age of the decedent, the date of death of the 31 decedent, the judicial district and state of the decedent's domicile at the time of
01 death, and the names and addresses of the spouse, children, heirs, and devisees 02 and the ages of any who are minors so far as known or ascertainable with 03 reasonable diligence by the applicant; 04 (C) if the decedent was not domiciled in the state at the time of 05 death, a statement showing venue; 06 (D) a statement identifying and indicating the address of any 07 personal representative of the decedent appointed in this state or elsewhere 08 whose appointment has not been terminated; 09 (E) a statement indicating whether the applicant has received a 10 demand for notice, or is aware of any demand for notice of any probate or 11 appointment proceeding concerning the decedent that may have been filed in 12 this state or elsewhere; 13 (F) a statement that the time limit for informal probate as 14 provided in AS 13.16.080 - 13.16.130 has not expired either because three 15 years or less have passed since the decedent's death, or, if more than three 16 years from death have passed, that circumstances as described by 17 AS 13.16.040 authorizing tardy probate or appointment have occurred; 18 (2) an application for informal probate of a will must state the 19 following in addition to the statements required by (1) of this subsection: 20 (A) that the original of the decedent's last will or a paper copy 21 certified under AS 13.12.518 of the decedent's last will is in the possession 22 of the court, or accompanies the application, or that an authenticated copy of a 23 will probated in another jurisdiction accompanies the application; 24 (B) that the applicant, to the best of the applicant's knowledge, 25 believes the will to have been validly executed; 26 (C) that after the exercise of reasonable diligence, the applicant 27 is unaware of any instrument revoking the will, and that the applicant believes 28 that the instrument that is the subject of the application is the decedent's last 29 will; 30 (3) an application for informal appointment of a personal 31 representative to administer an estate under a will must describe the will by date of
01 signing [EXECUTION] and state the time and place of probate or the pending 02 application or petition for probate; the application for appointment must adopt the 03 statements in the application or petition for probate and state the name, address, and 04 priority for appointment of the person whose appointment is sought; 05 (4) an application for informal appointment of an administrator in 06 intestacy must state in addition to the statements required by (1) of this subsection: 07 (A) that after the exercise of reasonable diligence the applicant 08 is unaware of any unrevoked testamentary instrument relating to property 09 having a situs in this state under AS 13.06.060, or a statement why any such 10 instrument of which the applicant may be aware is not being probated; 11 (B) the priority of the person whose appointment is sought and 12 the names of any other persons having a prior or equal right to the appointment 13 under AS 13.16.065; 14 (5) an application for appointment of a personal representative to 15 succeed a personal representative appointed under a different testacy status must refer 16 to the order in the most recent testacy proceeding, state the name and address of the 17 person whose appointment is sought and of the person whose appointment will be 18 terminated if the application is granted, and describe the priority of the applicant; 19 (6) an application for appointment of a personal representative to 20 succeed a personal representative who has tendered a resignation as provided in 21 AS 13.16.290(c), or whose appointment has been terminated by death or removal, 22 must adopt the statements in the application or petition that led to the appointment of 23 the person being succeeded except as specifically changed or corrected, state the name 24 and address of the person who seeks appointment as successor, and describe the 25 priority of the applicant. 26 * Sec. 12. AS 13.16.090(a) is amended to read: 27 (a) In an informal proceeding for original probate of a will, the registrar shall 28 determine whether 29 (1) the application is complete; 30 (2) the applicant has made oath or affirmation that the statements 31 contained in the application are true to the best of the applicant's knowledge and
01 belief; 02 (3) the applicant appears from the application to be an interested 03 person as defined in AS 13.06.050; 04 (4) on the basis of the statements in the application, venue is proper; 05 (5) an original, or a paper copy certified under AS 13.12.518, of the 06 decedent's duly executed and apparently unrevoked will is in the registrar's 07 possession; 08 (6) any notice required by AS 13.16.070 has been given and that the 09 application is not within AS 13.16.095; and 10 (7) it appears from the application that the time limit for original 11 probate has not expired. 12 * Sec. 13. AS 13.16.145(a) is amended to read: 13 (a) Petitions for formal probate of a will, or for adjudication of intestacy with 14 or without request for appointment of a personal representative, must be directed to 15 the court, request a judicial order after notice and hearing, and contain further 16 statements as indicated in this section. A petition for formal probate of a will must 17 (1) request an order as to the testacy of the decedent in relation to a 18 particular instrument which may or may not have been informally probated and 19 determining the heirs; 20 (2) contain the statements required for informal applications as stated 21 in AS 13.16.080(a)(1)(A)-(E), the statements required by AS 13.16.080(a)(2)(B) and 22 (C); and 23 (3) state whether the original, or a paper copy certified under 24 AS 13.12.518, of the last will of the decedent is in the possession of the court or 25 accompanies the petition. 26 * Sec. 14. AS 13.16.145(b) is amended to read: 27 (b) If the original will, or a paper copy of the will certified under 28 AS 13.12.518, is neither in the possession of the court nor accompanies the petition 29 and no authenticated copy of a will probated in another jurisdiction accompanies the 30 petition, the petition also must state the contents of the will, and indicate that it is lost, 31 destroyed, or otherwise unavailable.
01 * Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 APPLICABILITY. This Act applies to a will that is executed on or after the effective 04 date of this Act. In this section, "will" has the meaning given in AS 13.06.050. 05 * Sec. 16. This Act takes effect immediately under AS 01.10.070(c).