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Senate committee approves bill allowing e-signatures on probate documents

February 21, 2018

The electronic signing of estate planning documents is one step closer to becoming legal under Indiana law after a Senate committee passed e-signing legislation on Wednesday.

Rep. Greg Steuerwald, R-Avon, presented House Bill 1303 to the Senate Judiciary Committee on Wednesday morning, telling senators the bill was the product of a study committee comprised of attorneys, bar association representatives, probate judges and other stakeholders in the probate process. The bill – which passed the House of Representatives in late January – would allow testators to sign wills, trusts or powers of attorney documents via computer technology.

E-signing documents would be completely voluntary, Steuerwald said, and the bill does not dictate what software or technology can be used in the e-signing process. The bill also doesn’t change the existing procedure for e-filing a probate document with a court, he said.

Though HB 1303 received a 9-1 vote from the committee, senators raised several questions about the practicality and impact of e-signing legislation. Sen. Lonnie Randolph, D-East Chicago, voiced numerous concerns about the bill, telling the committee he did not see a need for the legislation and was concerned it could make the probate process more complicated.

But Jeffrey Dible, the Frost Brown Todd estate planning attorney who chaired the study committee, told Randolph that Indiana needs to establish its own laws concerning e-signing because other states have already done so. Dible pointed to the existing law in Nevada, which he said is very broad and allows testators to e-sign wills without being in the physical presence of their witnesses, a process known as remote witnessing.

HB 1303 does not allow for remote witnessing because the study committee members were concerned about the possibility of fraud or duress during the e-signing process, Dible said. However, many people are now electronically signing wills pursuant to the Nevada process, and as long as that process complies with Nevada law, an Indiana court must accept the will as valid, he said.

But Sen. Mike Young, R-Indianapolis, noted it could be possible for a testator and witnesses to intentionally lie about their location and claim to be in Indiana while actually signing the document in another state, whose laws would control. Dible conceded there was no absolute way to confirm the location of an e-signing, but noted the signing would be done under penalties of perjury. He also said a computer’s IP address or other data could likely provide location information in the case of a probate challenge.

Sen. Mike Delph, R-Carmel, questioned Dible on the technological security of e-signing probate documents, asking whether it would be appropriate to list permissible software in the bill. Dible, however, said the committee intentionally left those specifics out of the bill to give estate planning practitioners the opportunity to get used to the e-signing process and find technology that works best for them.

Delph also raised concerns about the possibility of more will contests caused by the advent of e-signing. Dible acknowledged that could happen, but he said it might not necessarily be a bad thing – if technology makes it easier for testators to draft and sign wills, then there might be fewer people dying intestate, he said.

Finally, Dible told the committee that e-signing is already in Indiana and is being pushed for by millennials who prefer to store important documents electronically rather than in paper files. Committee chair Rod Bray agreed, saying that even if older practitioners are resistant to e-signing probate documents, the trend will continue.

Despite his wariness toward HB 1303, Randolph voted in favor of the bill because it does not make e-signing mandatory. Similarly, Sen. Sue Glick, R-LaGrange, supported the measure even though she said she doesn’t expect to use e-signing in her own estate planning practice.

Delph was the only committee member to vote against HB 1303. The bill now heads to the full Senate.

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