Uniform Electronics Estate Planning Documents Act Establishment, the official text

A bill for an act relating to estates; enacting the Uniform Electronic Estate Planning Documents Act; proposing coding for new law as Minnesota Statutes, chapter 533.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

[533.01] TITLE.

This chapter may be cited as the "Uniform Electronic Estate Planning Documents Act."

Sec. 2.

[533.02] DEFINITIONS.

In this chapter:

(1) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(2) "Electronic presence" means an individual being in a state and communicating simultaneously with another person by means of an electronic device or process by sight and sound to substantially the same extent as if the individual were in a physical location in relation to the other person that would allow an individual to see and hear the person, allowing for reasonable accommodation for individuals with hearing, vision, or speech impairments as necessary.

(3) "Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.

(4) "Electronic signature" means an electronic symbol, signature, mark, or a process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

(5) "Information" includes data, text, images, codes, computer programs, software, and databases.

(6) "Nontestamentary estate planning document" means a record relating to estate planning and is not a will or contained in a will. The term:

(i) includes a record that creates, exercises, modifies, releases, or revokes:

(A) a trust instrument;

(B) a trust power that under the terms of the trust requires a signed record;

(C) a certification of a trust under section 501C.1013;

(D) a power of attorney under chapter 523;

(E) an agent's certification under sections 523.16 to 523.18 of the validity of a power of attorney and the agent's authority;

(F) a power of appointment;

(G) an advance directive, including a health care directive, directive to physicians, natural death statement, living will, and medical or physician order for life-sustaining treatment;

(H) a record directing disposition of an individual's body after death;

(I) a nomination of a guardian for the signing individual;

(J) a nomination of a guardian for a minor child or disabled adult child;

(K) a mental health treatment declaration;

(L) a community property survivorship agreement;

(M) a disclaimer under the Uniform Disclaimer of Property Interests Act, sections 524.2-1101 to 524.2-1116;

(N) an antenuptial agreement or postnuptial agreement; and

(O) any other record intended to carry out an individual's intent regarding property or health care while incapacitated or on death; and

(ii) does not include a deed of real property, or certificate of title for a motor vehicle, watercraft, or aircraft.

(7) "Person" means:

(i) an individual;

(ii) an estate;

(iii) a business or nonprofit entity;

(iv) a government or governmental subdivision, agency, or instrumentality; or

(v) any other legal entity.

(8) "Power of attorney" means a record that grants authority to an agent to act in place of the principal, even if the term is not used in the record.

(9) "Presence" or "conscious presence" means either:

(i) an individual being in a physical location in relation to another person that allows the individual to see and hear the person; or

(ii) electronic presence.

(10) "Record" means information that is: (i) inscribed on a tangible medium; or (ii) stored in an electronic medium and is retrievable in perceivable form.

(11) "Security procedure" means a procedure to verify that an electronic signature, record, or performance is that of a specific person or to detect a change or error in an electronic record. The term includes a procedure that uses an algorithm, code, identifying word or number, encryption, or callback or other acknowledgment procedure.

(12) "Settlor" means a person, including a testator, that creates or contributes property to a trust.

(13) "Sign" means, with present intent to authenticate or adopt a record:

(i) execute or adopt a tangible symbol; or

(ii) attach to or logically associate with the record an electronic signature.

(14) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or other territory or possession subject to the jurisdiction of the United States. The term includes a federally recognized Indian Tribe.

(15) "Terms of a trust" means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.

(16) "Trust instrument" means an instrument executed by the settlor that contains terms of the trust, including any amendments.

(17) "Will" includes an electronic will, any codicil to a will or electronic will, and a testamentary instrument which merely appoints an executor, revokes or revises another will, electronic will, or codicil.

Sec. 3.

[533.03] CONSTRUCTION.

This chapter must be construed and applied to:

(1) facilitate electronic estate planning documents and signatures consistent with other law; and

(2) be consistent with reasonable practices concerning electronic documents and signatures and continued expansion of those practices.

Sec. 4.

[533.10] SCOPE.

(a) Except as provided in paragraph (b), sections 533.10 to 533.19 apply to an electronic nontestamentary estate planning document and an electronic signature on a nontestamentary estate planning document.

(b) Sections 533.10 to 533.19 do not apply to a nontestamentary estate planning document if the document precludes use of an electronic record or electronic signature.

(c) Sections 533.10 to 533.19 do not affect the validity of an electronic record or electronic signature that is valid under:

(1) the Uniform Electronic Transactions Act, chapter 325L;

(2) the Uniform Probate Code, chapter 524; or

(3) the Minnesota Real Property Electronic Recording Act, sections 507.0941 to 507.0949.

Sec. 5.

[533.11] PRINCIPLES OF LAW AND EQUITY.

The law of this state and principles of equity applicable to a nontestamentary estate planning document apply to an electronic nontestamentary estate planning document except as modified by sections 533.10 to 533.19.

Sec. 6.

[533.12] USE OF ELECTRONIC RECORD OR SIGNATURE NOT REQUIRED.

(a) Sections 533.10 to 533.19 do not require a nontestamentary estate planning document or signature on a nontestamentary estate planning document to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form.

(b) A person is not required to have a nontestamentary estate planning document in electronic form or signed electronically even if the person previously created or signed a nontestamentary estate planning document by electronic means.

(c) A person may not waive the provisions of this section.

Sec. 7.

[533.13] RECOGNITION OF ELECTRONIC NONTESTAMENTARY ESTATE PLANNING DOCUMENT AND ELECTRONIC SIGNATURE.

(a) A nontestamentary estate planning document or a signature on a nontestamentary estate planning document may not be denied legal effect or enforceability solely because it is in electronic form.

(b) If other law of this state requires a nontestamentary estate planning document to be in writing, an electronic record of the document satisfies the requirement.

(c) If other law of this state requires a signature on a nontestamentary estate planning document, an electronic signature satisfies the requirement, except as expressly prohibited by Minnesota Statutes.

Sec. 8.

[533.14] ATTRIBUTION AND EFFECT OF ELECTRONIC RECORD AND ELECTRONIC SIGNATURE.

(a) An electronic nontestamentary estate planning document or electronic signature on an electronic nontestamentary estate planning document is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including by showing the efficacy of a security procedure applied to determine the person to which the electronic record or electronic signature was attributable.

(b) The effect of attribution to a person under subsection (a) of a document or signature is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption and as provided by other law.

Sec. 9.

[533.15] NOTARIZATION AND ACKNOWLEDGMENT.

If other law of this state requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied with respect to an electronic nontestamentary estate planning document if an individual authorized to perform the notarization, acknowledgment, verification, or oath attaches or logically associates the individual's electronic signature on the document together with all other information required to be included under the other law, and in conformity with the laws of the state in which the execution occurs.

Sec. 10.

[533.16] WITNESSING AND ATTESTATION.

(a) If other law of this state bases the validity of a nontestamentary estate planning document on whether it is signed, witnessed, or attested by another individual, the signature, witnessing, or attestation of that individual may be electronic.

(b) If other law of this state bases the validity of a nontestamentary estate planning document on whether it is signed, witnessed, or attested by another individual in the presence of the individual signing the document, the presence requirement is satisfied if the individuals are in each other's electronic presence.

Sec. 11.

[533.17] RETENTION OF ELECTRONIC RECORD; ORIGINAL.

(a) Except as provided in paragraph (b), if other law of this state requires an electronic nontestamentary estate planning document to be retained, transmitted, copied, or filed, the requirement is satisfied by retaining, transmitting, copying, or filing an electronic record that:

(1) accurately reflects the information in the document after it was first generated in final form as an electronic record or under section 533.18; and

(2) remains accessible to the extent required by the other law.

(b) A requirement under paragraph (a) to retain a record does not apply to information the sole purpose of which is to enable the record to be sent, communicated, or received.

(c) A person may satisfy paragraph (a) by using the services of another person.

(d) If other law of this state requires a nontestamentary estate planning document to be presented or retained in its original form, or provides consequences if a nontestamentary estate planning document is not presented or retained in its original form, an electronic record retained in accordance with paragraph (a) satisfies the other law.

(e) This section does not preclude a governmental agency from specifying requirements for the retention of a record subject to the agency's jurisdiction in addition to those in this section. In this section, "governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.

Sec. 12.

[533.18] CERTIFICATION OF PAPER COPY.

An individual may create a certified paper copy of an electronic nontestamentary estate planning document by affirming under penalty of perjury that a paper copy is a complete, true, and accurate copy of the document. A certified paper copy of an electronic nontestamentary estate planning document is presumed to be a true and accurate copy of the executed electronic record, absent clear and convincing evidence to the contrary, and must be given the same effect as an original.

Sec. 13.

[533.19] ADMISSIBILITY IN EVIDENCE.

Evidence relating to an electronic nontestamentary estate planning document or an electronic signature on the document may not be excluded in a proceeding solely because it is in electronic form.