SB 90-ELECTRONIC WILLS  2:03:42 PM CHAIR COSTELLO announced the consideration of SENATE BILL NO. 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." [CSSB 90(JUD) was before the committee.] 2:04:23 PM At ease 2:08:01 PM CHAIR COSTELLO reconvened the meeting and asked the sponsor to introduce the bill. SENATOR MYERS, Alaska State Legislature, Juneau, Alaska, sponsor of SB 90 introduced the legislation paraphrasing the following sponsor statement. 2:08:50 PM In Alaska, all wills except handwritten wills must be executed in-person with at least two witnesses present. Current state probate legislation does not account for the remote signing and witnessing of wills. This can make it difficult for the elderly or those with little resources to plan their estate. The COVID-19 pandemic has exacerbated circumstances surrounding traditional estate planning. The public closure of the state's Pioneer Homes and assisted living homes has isolated many seniors from these services. Additional legislation is required to bring tools utilized throughout the pandemic, such as video conferencing, to the estate planning process. SB 90 aims to fill the gap in probate legislation by allowing the electronic signing and witnessing of wills. This bill enables individuals to draft and sign a will on a computer, tablet, or other electronic device. Witnesses can also observe the execution of a will through a video and audio link and do not need to be physically present. These reforms and modernizations will bring additional accessibility and connectivity to a state that has many small rural communities out of the reach of the road system. As Alaska moves towards the future, so should our will and probate process SENATOR STEVENS commented on the potential for fraud and asked for assurance that nobody else could write his will for him. SENATOR MYERS explained that to maintain the existing protections, the bill requires video and audio contact with the attorneys and notary who are attesting to the identity of the testator and witnesses during the will signing. He noted that Alaska probate law allows flexibility in writing the will but has robust protections to allow the opportunity to challenge the execution of the will. CHAIR COSTELLO asked if other states have similar legislation. SENATOR MYERS answered yes; he recalled that about 12 states allow this, and another 30 states are working on similar model legislation from the Uniform Law Commission. He noted that SB 90 altered the model legislation slightly to accommodate Alaska statutes. CHAIR COSTELLO asked for an explanation of the Uniform Law Commission SENATOR MYERS explained that it is a group of attorneys from across the country that create draft legislation to address topics that have widespread and national implications. Will writing is one of those topics. The model legislation is uniform to accommodate people who write their wills in one jurisdiction and subsequently move to another. With a uniform law, the will would be valid in both jurisdictions. CHAIR COSTELLO asked if wills written in one jurisdiction are not necessarily valid if a person dies in another jurisdiction. SENATOR MYERS replied he did not believe that had been an issue and SB 90 seeks to ensure that continues to be the case going forward. 2:15:02 PM CHAIR COSTELLO asked him to explain the current process to file a will. SENATOR MYERS explained that an individual would typically go to an attorney who would write their will; a notary would witness the signing by the testator and their witnesses giving reasonable assurance that it was created without duress; and the testator would then file the will at home, with their attorney, or the court. 2:16:10 PM SENATOR REVAK asked if the bill stems in part because the pandemic made it difficult to impossible for people to prepare and file their wills. SENATOR MYERS replied it was attorneys primarily who asked him to file the bill because it had been so difficult to complete probate work with their clients. SENATOR STEVENS noted that he recently rewrote his will and filed it with the court so that his family knows where it is. He asked for an explanation of electronically filing a will with the court. SENATOR MYERS clarified that the Court System in Alaska is not set up to accept electronic filing, including wills. The bill does provide that a will that has been signed electronically is valid and a certified copy may be filed with the court. The model legislation from the Uniform Law Commission allows electronic filing with the court and the original bill had that language. The previous committee amended that language to reflect that the Alaska Court System cannot accommodate electronic filing. CHAIR COSTELLO found no further questions and asked Mr. Nash to walk through the sectional analysis, including the changes the previous committee made. 2:19:06 PM JOSIAH NASH, Staff, Senator Robert Myers, Alaska State Legislature, Juneau, Alaska, presented the sectional analysis for SB 90, version B. Section 1. A will is defined as a document that directs how an individual's property should be distributed or managed after their death. This definition is expanded to include an electronic will. Section 2. Electronic presence is defined as two or more individuals in multiple locations with technology that enables these individuals to maintain audio and visual contact and communicate. This definition includes the communication between individuals who have a visual, hearing, or speech impairment. Additionally, an electronic will is defined as a will with electronic text and/or the electronic signature of the testator or a witness. Section 3. A will disposing of personal property in any location, or real property located in Alaska, made in or outside of Alaska by a resident or non-resident of the state where the property is located, is valid and admissible to probate in Alaska if the will is a record readable as text at the time of signing and signed by the testator and executed under the local law of this state, the jurisdiction where the testator was physically present when they signed the will, or the jurisdiction where the testator lived, either at the time of the execution of the will or at death. Section 4. Except as provided in several instances in other sections of the statutes, a will must be a record that is readable as text at time of signing, signed by the testator or signed in their name by another individual who is taking direction from the testator and in their physical or electronic presence, and signed by at least two individuals who are in the physical or electronic presence of the testator at the time of signing and sign within a reasonable time after witnessing the signing of the will or the testator's acknowledgment of that signature. A will that does not comply with these requirements is valid as a holographic will without any witnesses if signature and material portions are in the testator's handwriting or readable as text. MR. NASH explained that a holographic will cannot be generated electronically, but a copy in the form of an electronic image can be filed with the court. A computer with a text editor cannot be used to create a holographic will. Section 5. This section contains an oath for the testator and witnesses of a will to proclaim before an officer authorized to administer the oath of laws of the state where the testator is physically present. This section contains an oath similar to the oath in Sec. 5 but is for use after the execution of a will to retroactively self-prove it. 2:23:13 PM Section 7. Except as provided in another section of the statutes, a will is valid if executed in compliance with the law at the time of execution of the place where the will is executed, which is the place where the testator is physically present while signing the will, or the laws of the place where the testator abodes at time of death. Section 8. A will or a section of a will is revoked by executing another will that overwrites the previous will, or by the testator destroying or deleting the will themself or with the aid of another individual acting at their direction. MR. NASH noted that a requirement was added for clear and convincing evidence to be used as the legal standard to prove a testators intent in revoking a will. Section 9. An individual can make a paper copy of their will by taking an oath that copy is true and accurate. If the will is self-proving, the copy must include the self- proving affidavits. MR. NASH noted that the provision in Section 9 was amended in the previous committee to allow a copy of a holographic will, as discussed in Section 4. Section 10. A petition to the court to determine whether a trust is valid and enforceable before a settlor's death must contain: 1. A statement that a copy (may be electronic copy) of the will has been filed with the court. 2. A statement that the will is in writing or is an electronic will. 3. A statement that the will was signed by the testator or by another individual at the testator's direction in the physical or electronic presence of the testator. 4. In the case of a witnessed will, a statement that the will was signed by at least two individuals, each of whom signed within a reasonable amount of time after witnessing the signing of the will or the testator acknowledgment of the signature on the will. 5. In the case of a holographic will, a statement that the signature and material portions are in the testator's handwriting or a record readable as text. MR. NASH advised that the foregoing was changed to be in electronic form, but it cannot be electronically generated. 6. A statement that the will is executed with the testator's intent. 7. A statement that the testator had legal and mental capacity. 8. A statement that the testator was free from undue influence and duress. 9. A statement that the will was not executed fraudulently or mistakenly. 10. Names and addresses of the testator, testator's spouse, testator's children, testator's heirs, personal representative nominated in the will, and the devices of the will. 11. If minors, the ages of the testator's children, the testator's heirs, and the devisees under the will, as far as known or ascertainable with reasonable diligence by the petitioner. 12. A statement that the will has not been revoked of modified. 13. A statement that the testator is familiar with the contents of the will. 2:27:37 PM SENATOR STEVENS asked what assurance he would have that an electronic will would be available in the future. SENATOR MYERS replied he understands the concern but losing a will is already an issue when it is on paper. He said the previous committee primarily addressed revocatory acts and added, "deleting" to the list of ways a will could be revoked. The clear and convincing standard was added to ensure that when a will is deleted it is intentional. To safeguard a will the recommendation is to file it in a safe, with an attorney, with the court or all the foregoing to protect yourself and heirs, he said. MR. NASH continued the sectional analysis. He advised that Section 10 was amended in the previous committee to clarify that a paper copy of an electronic will may be filed with the Alaska Court System. It is not set up to accept electronic wills. Section 11.  Applications for informal probate or appointment shall be directed to the registrar and verified by the applicant to be true to the applicant's best knowledge as to the following information: 1. Every application for informal probate of a will or for informal appointment of a personal representative other than a special or successor representative, must contain the following. a. A statement of interest of the applicant. b. The name and age of the decedent, decedent death date, the judicial district, and the state of the decedent's domicile at the time of death, and the names and addresses of the spouse, children, heirs, and devisees and ages of any who are minors ascertainable with reasonable diligence by the applicant. c. If decedent was not living in the state at the time of death, a statement showing venue. d. A statement identifying the address of any personal representative of the decedent appointed in this state of elsewhere whose appointment has not been terminated. e. A statement indicating whether the applicant has received a demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere. f. A statement that the time limit for informal probate has not expired either because three years or less have passed, that circumstances as described by the statutes, authorizing tardy probate or appointment have occurred. 2. An application for informal probate of a will must state the following in addition to the aforementioned statements: a. Original of the decedent's will or a paper copy of the will is in the possession of the court, or accompanies the application, or that an authenticated copy or a will probated in another jurisdiction accompanies the application. b. To the best of the applicant's knowledge, believes the will to have been validly executed. c. After the exercise of reasonable diligence, the applicant is unaware of and instrument revoking the will, and that the applicant believes that the instrument that is the subject of the application is the decedent's will. 3. Application for informal appointment of a personal representative to administer an estate under a will must describe the will by date of signing and state the time and place of probate or the pending application or petition for probate. Application for appointment must adopt the statements in the application or petition for probate and sate the name address and priority for appointment of the person whose appointment is sought. 4. An application for informal appointment of an administer in intestacy must state in addition to the statements required by section one as aforementioned. a. After reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this state under statutes, or statement why any such instrument of which the applicant may be aware is not being probated. b. Priority of the person whose appointment is sought and the names of any other persons having prior or equal right to the appointment. 5. Application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status must refer to the order in the most recent testacy proceeding. The application must state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted and describe the priority of the applicant. 2:35:02 PM CHAIR COSTELLO turned to invited testimony. 2:35:03 PM ABIGAIL O'CONNOR, Attorney, O'Connor Law LLC, Anchorage, Alaska, stated that she practices solely in the area of trust and estate law and was one in the group of Alaska trust and estate lawyers who drafted this legislation. It is based primarily on the Uniform Law Commission model legislation with some adjustment specific to Alaska. MS. O'CONNOR addressed the questions the committee posed. Responding to Senator Steven's question about the potential for fraud, she said the sad reality is that fraud with wills cannot be prevented. The issue is handled by remedy and those will continue. With regard to filing an electronic will with the court, she said the bill has a new section for the certification of a copy of an electronic will and that certified paper copy can be filed with the court. Regarding the concern about a deleted or destroyed will, she said that is already a problem and it is the individual's responsibility to adequately protect and store their wills. She said she counsels her clients to file the will with the court, store it in a safe deposit box, or keep it in a fireproof safe. In response to Senator Costello's question, she said states generally accept valid wills from other states, but there are exceptions. Florida, for example, does not accept any handwritten wills, even if they are deemed valid in another state. To the question of filing an electronic will with the court, she said that can be done by filing a certified [paper] copy of the electronic will. In response to Senator Revak's question, she confirmed that there were difficulties for people trying to sign wills during the pandemic. Some people were unable to sign their wills altogether. 2:40:52 PM MS. O'CONNOR said she supports SB 90, but believes that the language added with the amendments in the previous committee could be improved. CHAIR COSTELLO asked her to provide her testimony and responses to the questions in writing. 2:41:29 PM LINDA HULBERT, representing self, Fairbanks, Alaska, stated that she has been an insurance and financial professional for 30 years and the industry has transitioned from paper to electronic documents in the last year Companies are able to write an application, underwrite an application, and deliver a policy electronically. Her clients want personal service and the efficiency of electronic documents. She said she supports SB 90; "The need for electronic wills is substantial." CHAIR COSTELLO encouraged her to submit her testimony in writing. 2:43:27 PM MATTHEW BLATTMACHR, Attorney, Peak Trust Company, Anchorage, Alaska, stated that his company practices in the area of estate planning. He agreed with previous testimony that the nation is moving in the direction of electronic documents. SB 90 would add clarity to the statutes as to what is allowed and how it is allowed. Rural communities in particular would be benefited, as would anybody who is affected by the COVID-19 pandemic. He voiced support for SB 90. CHAIR COSTELLO encouraged him to submit his written testimony to the committee. 2:44:39 PM CHAIR COSTELLO opened public testimony on SB 90; finding none, she closed public testimony. 2:44:50 PM CHAIR COSTELLO held SB 90 in committee.