§ 29-1-21-6 — "Form vendor"; instructions to signatory

Indiana § 29-1-21-6

• Jurisdiction: Indiana
• Art. 1: PROBATE CODE
• Ch. 21: Electronic Wills

Text

(a) As used in this section, "form vendor"
means any person who provides a testator with an electronic will form
or a user interface for creating, completing, or executing an electronic
will. The term includes:
(1) an attorney who prepares an electronic will for a testator; and
(2) any vendor or licensor of estate planning software of digital
estate planning forms.
(b) It is consistent with best practices to provide the following
advisory instruction with each electronic will:
"IMPORTANT Instructions to the Person Signing an Electronic
Will
A. The procedure for proper execution (electronic signing and
witnessing) of your electronic will is as follows:
(1) You (the testator) and the two (2) attesting witnesses must
be able to interact with each other in real time throughout the
execution process and the witnesses must be able to observe
you and each other as your electronic will is being signed.
Effective on and after __________, 2021 and on or after March
31, 2020 in some situations covered by emergency orders of the
Indiana Supreme Court, Indiana law has permitted attesting
witnesses to observe or participate in the signing process from
a location that is apart or separate from the testator's location
and to act as witnesses through use of remote audio, remote
visual, or remote audiovisual software or technology.
(2) Both attesting witnesses must be adults and should not be
individuals who will be gifted money or other property under
the terms of your electronic will. If a witness named in the
electronic will is named as a beneficiary or legatee or entitled
to money or property under the terms of the electronic will, the
beneficiary or legatee named in the electronic will may only
receive money, property, or shares reserved for them under
state intestacy laws.
(3) You, as the testator, must inform the attesting witnesses that
the document you will be signing is your will.
(4) You (the testator) and the two (2) attesting witnesses may
use the same computer or device or different computers and
devices to make your respective electronic signatures on the
electronic will.
(5) The online user interface or software application for your
will may require you and the attesting witnesses to use a
password, validation code, token, or other security feature in
order to prevent identity theft or impersonation and
permanently link each of you, as individuals, to your respective
electronic signatures.
(6) You (the testator) and the two (2) attesting witnesses should
follow the instructions provided by the online user interface or
software application when making your respective electronic
signatures on your electronic will. You (the testator) should
electronically sign the electronic will first followed by each of
the attesting witnesses. If you (the testator) are physically
unable to type, press keys, or otherwise enter commands on the
computer or device being used to electronically sign the
electronic will, you may instruct another adult who is not an
attesting witness to enter your electronic signature on your
electronic will for you. Any individual who enters or makes
your electronic signature on your electronic will on your behalf
must do so in your presence. For this purpose, and on and after
_______, 2021, the requirement of presence is satisfied by use
of any two-way audiovisual communication method that allows
you and the witnesses to interact and observe each other in real
time as described in subdivision (1).
(7) The software application or online user interface may create
a date and time stamp for your electronic signature and for the
electronic signature of each attesting witness.
(8) The execution of your electronic will is complete after you
and the attesting witnesses have completed making your
electronic signatures by clicking or executing a command that
saves or submits your respective electronic signatures in the
software application or online interface.
(9) You are strongly encouraged to save a complete copy of
your electronic will in a portable and printable format. An
electronic will preserved in this manner should include all
information related to the execution process of your electronic
will, including information that is compiled or stored by the
software application or online user interface. The related
information described in this subdivision should be viewable
and printable as a self-contained and permanent part of the
electronic record for your electronic will.
B. If you used a software application or an online user interface
to generate, finalize, and sign your electronic will, the software or
user interface may also offer you the ability to securely store the
electronic record of your electronic will. You may be required to
create or establish a user identification, password, or other
security feature in order to store the electronic record of your
electronic will in this way. You should carefully safeguard your
user identification, password, security questions, and personal
information used to securely save or store your electronic will.
The information that you are being asked to safeguard will likely
be required in order to:
(1) generate;
(2) replace;
(3) retrieve; or
(4) revoke;
your electronic will at a later date.
C. The only proper and valid way for you to revoke your
electronic will is to:
(1) sign a new electronic will or a traditional paper will that
revokes all previous wills executed by you; or
(2) permanently and irrevocably make unreadable and
nonretrievable the electronic record for your electronic will.
If you are holding the electronic record for your electronic will on
your own computer or digital storage device and not making use
of a third party custodian or online storage or cloud based
document storage service to store or safeguard your electronic
will, you may personally delete permanently or make unreadable
the electronic record associated with your electronic will. Before
doing so, you are encouraged to make and save a printable,
permanent copy of the complete electronic record associated with
your electronic will, including any related information pertaining
to the execution or signing process of your electronic will, so that
the contents of your revoked electronic will may be discovered
later by a probate court or any other interested persons in the
event of a dispute concerning the validity of any later will that you
decide to make.
If you are making use of a third party custodian or online or cloud
based document storage service to store or safeguard your electronic
will, the valid revocation of your electronic will requires you to
personally issue a written or electronic revocation document to each
third party custodian who has custody of a copy of the electronic record
associated with your electronic will. A valid revocation document must
instruct the custodian to permanently delete or make unreadable and
nonretrievable the electronic record associated with your electronic
will. A valid revocation document must be signed by you and two (2)
attesting witnesses while following the same procedures required for
the execution of a new traditional paper will or new electronic will.".
(c) A failure to provide the text of the advisory instruction in
subsection (b) does not affect the validity of the electronic will if the
electronic will is otherwise properly executed in the manner set forth
in this chapter.
(d) A failure to provide the advisory instruction described in
subsection (b) may not be the predicate for any form of civil or other
liability.

Legislative History

As added by P.L.40-2018, SEC.2. Amended by P.L.185-2021, SEC.10.