Colorado’s New Uniform Electronic Wills Act, 0222 COBJ, Vol. 51, No. 2 Pg. 46

PositionVol. 51, 2 [Page 46]

51 Colo.Law. 46

Colorado’s New Uniform Electronic Wills Act

No. Vol. 51, No. 2 [Page 46]

Colorado Lawyer

February, 2022



This article provides an overview of the enactment of e-wills and remote online notarization in Colorado. It covers the authority governing both paper and e-wills and identifies e-will issues that Colorado courts will likely consider. It also includes practice tips for handling e-wills and remote online notarization.

Starting in around2015, internet-based technology companies began lobbying Colorado and other states for new legislative schemes that would replace traditional in-person transactions, such as real estate closings and will executions, with virtual transactions using proprietary online platforms. This article discusses the recent enactment of Colorado legislation allowing for electronic wills (e-wills) and remote online notarization (RON). It covers the authority governing both paper and e-wills and identifies e-will issues that Colorado courts will likely consider as matters of first impression. It also includes practice tips for handling e-wills and RON.

The Legislative History of E-Wills and RON

In November 2019, the Uniform Law Commission released the final draft with comments of the Uniform Electronic Wills Act (UEWA). On January 21, 2021, Governor Polis signed the Colorado Uniform Electronic Wills Act (CUEWA), which became effective immediately. The CUEWA, located at CRS §§ 15-11-1301 et seq., provides the statutory framework for creating and executing e-wills. Its provisions are largely analogous to those in Part 5, Article 11 of the Colorado Probate Code governing the execution and validity of traditional paper wills. But unlike paper wills, e-wills are eligible for RON, which allows a remotely located individual to "personally appear" before a notary using real-time audio-video communication.

The push for RON began before the COVID-19 pandemic,but pandemic restrictions drove it home. Colorado SB 20-96, which amended the Revised Uniform Law on Notarial Acts (RULONA), CRS §§ 24-21-501 et seq., to allow for RON, had been introduced pre-pandemic with broad support. However, when states began enacting COVID-19 closures and restrictions, most, like Colorado, had not yet enacted laws permitting the use of audio-video technology to witness, notarize, and/or execute estate planning documents or for other transactions.

As result, in the pandemic's early months, most states, including Colorado, issued emergency orders, directives, rules, and/or regulations to facilitate the preparation and execution of wills and other related estate planning instruments remotely but not electronically.1 The executive and judicial branches were willing to use their authority to make some accommodations to allow remote witnessing of the execution of paper documents and remote notarization of paper documents, but neither branch could override existing legislative requirements to allow a "will," as defined by CRS § 15-10-201(59), to be created and executed electronically. Nevertheless, amendments to the Colorado Rules of Probate Procedure (CRPP) and notarial requirements facilitated the execution of estate planning documents during the pandemic.

CRPP 91 and 92 were adopted on April 24, 2020, and enable the remote signing of estate planning documents that must be witnessed during any period in which the Colorado governor, by executive order, has formally declared the existence of a public health crisis that, by the terms of such order, requires social or physical distancing throughout Colorado. CRPP 91 allows for remote witnessing of certain non-testamentary instruments, such as anatomical gifts. CRPP 92 allows the testator to sign a paper will with the witnesses and estate planning attorney observing the testator's execution via real-time audio -video technology. However, the original paper will bearing the testator's wet signature must then be delivered to the estate planning attorney who observed the execution and then be presented to the witnesses for their certification. A will executed under CRPP 92 cannot be made self-proving and is ineligible for informal probate.

The Colorado Secretary of State amended 8 CCR 1505-11 on March 30,2020, to include new temporary Rule 5, which allowed for remote ink notarization, known as RIN, via real-time audio-video communication. For a will to be treated as validly executed under CRS § 15-11-502(l)(c)(II), Rule 5 required that the original paper will signed by the testator be delivered to the notary within three calendar days of its execution. Rule5 expired onDecember31,2020. A will executed under Rule 5 before January 1, 2021, is not self-proving but is eligible for informal probate if the pages bearing the wet signatures of the testator and the notary and the notary's seal are all lodged with the court as the original will.

As of January 1,2021, a Colorado notary can no longer perform remote ink notarizations; the notarization of a paper document requires that the signer be in the notary's physical presence when the notarial act is performed. But under CRS § 24-21 -506, an electronic record or document may be notarized either (1) in the notary's physical presence, with the notary using an electronic seal; or (2) remotely, in the electronic presence of the notary using real-time audio-video communications. Under CRS § 24-21-506(2), a RON may only be completed using a remote notarization provider platform approved by the Colorado Secretary of State (Secretary). Notably, Colorado notaries cannot use Zoom, Face time, Teams, or Web Ex to perform RONs.2The Secretary's website has FAQs, summaries, rules, approved notary and web-based communications providers, training information, applications, and tutorials.3

The link between e-wills and RON is built into the CUEWA's statutory scheme. Specifically, the CUEW Arequires that a notarial act performed on a Colorado e-will be done by an individual who is authorized to notarize records in Colorado and is physically located in Colorado at the time the notarial act is performed.4 Thus, a notarial act performed on a Colorado e-will must strictly comply with Colorado's RON requirements for die will to be validly executed under die CUEWA. For example, Colorado RON requires that die performance of a notarial act be captured on an audio-visual recording, the recording be stored for 10 years, and the electronic record or document be made tamper-evident upon completion of die notarial act. A RON performed on an e-will using ZOOM will not meet these technical conditions and will therefore not meet die CUEWA's requirements.

CUEWA Basics

The impractical requirements for remote execution of paper wills implemented in 2020 engendered the political will in Colorado (and several other states) to enact legislation providing for die remote execution of wills. The CUEWA passed in both the Colorado Senate and House with unanimous support. It applies to e-wills of decedents who die on or after January 21,2021.5

Defining E- Wills

The CUEWA defines "electronic will" at CRS § 15-11-1302(3) as a will executed electronically in compliance with its provisions. An e-will is a will stored in an electronic or other medium that is retrievable in perceivable form and is in a readable text at the time of signing.6 Once an e-will is executed in accordance with the CUEWA, a duplicate original of the e-will could be stored electronically in a multitude of locations, including in die cloud, on a desktop, or as an attachment to an email in an inbox or sent folder, under CRS § 15-11-1302(4).

The Uniform Law Commission recognized that die physical revocation of an e-will is confounded by die duplicate original environment. The UEWA's official comments state that testators will likely have multiple duplicate originals of an e-will stored on numerous digital devices, thus making revocation difficult to ascertain.

“ The link between e-wills and RON is built into the CUEWA’s statutory scheme. Specifically, the CUEWA requires that a notarial act performed on a Colorado e-will be done by an individual who is authorized to notarize records in Colorado and is physically located in Colorado at the time the notarial act is performed. ”

This revocation issue typically does not arise with traditional paper wills, which are inscribed in a tangible medium (typically paper).7 While the original paper will (i.e., paper with ink signatures) maybe photocopied or electronically scanned, if die original will was known to be last seen in the testator's possession before death but cannot be located after death, it is presumed to be revoked under the "lost will doctrine."8

Many estate planners are also concerned that an e-will that is remotely witnessed and/ or notarized using real-time audio-video technology will create a second class of wills that will not be given the same deference by a judicial officer or jury in a will contest, because the circumstances surrounding the e-will's execution may be less reliable.9 For example, a paper will executed in the physical presence of counsel, witnesses, and a notary affords a better opportunity to observe die testator's demeanor, capacity, and appearance, and to ensure that die testator's execution of the document is free of undue influence.

Testator's Presence

Colorado treats will execution like most states in that a will signed by die testator in the presence of two witnesses, each of whom also signs, is valid. But Colorado is one of just three states that allows a will to be acknowledged before a notary in lieu of witnesses.10 To witness the execution of a paper will, the witnesses must be in the "conscious presence" of the testator when the testator affixes his or her signature to the paper will. "Conscious presence" under die Colorado Probate Code requires witnesses to be in the physical proximity of the testator, but...

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