Boogie woogie, woogie!
Wouldn’t it be great if you could make your will on your iPhone? A simple, affordable iWill. At your convenience, type in your burial wishes, name a guardian for your potentially parentless child, and designate who gets what – “My daughter, Sam, takes the dog, Jeep Wrangler, and graffiti art collection. My friend, Willie, gets my John Elway jersey and baseball card collection.”
Actually, you can. For $2.99, there’s an iPhone app that lets you do just that. The app works by asking you a series of questions. After typing in your name and general information, you will answer 10 questions, including, “Do you wish to authorize your personal representative without a bond? Do you wish to authorize independent administration of your estate?” Confusing? Yes. Although the legal terms are hyperlinked to a definitions page, the definitions seem to raise more questions than they answer.
When you finish answering the questions, your inputs will remain in the app. Upon your death, the person you designated to have access to your digital assets can go into your cell phone, open the app and view your responses. There you have your 3 dollar, 5 minute iWill.
Warning: The above scenario presents an issue since your will is the document that specifies who will have access to your cell phone. It is important to have a written will providing instructions on how to handle your digital assets.
Enforceability of an iWIll
A probate court in the United States will not likely enforce a will that exists solely on a decedent’s cell phone. Each state has several rules that a will must follow in order to be enforced, including sufficient mental capacity, a valid signature, and two witnesses. Cell phone written wills present too many issues for courts. For instance, did somebody with access to your cell phone create the document? Did you even intend for courts to view the information in your cell phone? Is the witness requirement met? Does typing your name at the bottom of the app constitute an electronic signature?
An iPhone app may give you ideas about things to include in your will but will fall short when it comes time for the court to enforce your wishes. If you draft a will on your cell phone using a word processing application, such as Notes, the court will face the same issues as above.
Upon opening the app, you must agree to a disclaimer, the beginning of which reads “Our legal form apps and website are not a substitute for the advice of an attorney and we encourage users to have all documents created with our app reviewed by attorney…” In part, the app is shielding itself from liability by having you agree to this disclaimer, but really, they are offering sound advice. There is no substitute for having an attorney assist you with estate planning. Estate plans are complex and moldable. No two plans should be alike. It is important to shape yours in a way that reduces taxes and protects your family. Most importantly, you need a document that will be enforced in the court of law.
Your family’s well-being following your death is not a matter for your iPhone. It is a process that requires some back and forth with a professional. Often times, you don’t know what you want. Whether it means setting up trusts or a medical record disclosure for your child, an attorney can help you figure that out. Please contact us to discuss your options.