IL House Bill 2269

Legislation

State: Illinois
Signed: July 28, 2023

Effective: January 01, 2024
Chapter: Public Act 103-0301

Summary
Illinois is the first state to enact the Uniform Electronic Estate Planning Documents Act (UEEPDA), authorizing Notaries to use electronic signatures on electronic nontestamentary estate planning records.

Affects

Amends 755 ILCS 5/1-2.25, 755 ILCS 5/8-1, 755 ILCS 5/8-2, 755 ILCS 6/1-1, 755 ILCS 6/1-5, 755 ILCS 6/1-15, 755 ILCS 6/1-20 and creates 755 ILCS 6/11-5, 755 ILCS 6/11-10, 755 ILCS 6/11-15, 755 ILCS 6/11-20, 755 ILCS 6/11-25, 755 ILCS 6/11-30, 755 ILCS 6/11-35, 755 ILCS 6/11-40, 755 ILCS 6/11-45, 755 ILCS 6/11-50, 755 ILCS 6/11-55, 755 ILCS 6/11-60, 755 ILCS 6/11-65, and 755 ILCS 6/11-70.

Changes

Defines “nontestamentary estate planning document” as a record relating to estate planning that is readable as text at the time of signing and is not a will or contained in a will.
Provides that a “nontestamentary estate planning document” includes a record readable as text at the time of signing 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, such as a power to appoint, remove, or designate a trustee or other fiduciary or powerholder, a power to direct a trustee, a power to modify or amend, a power to withdraw assets, a power to decant, a power to waive notice, or any other power granted under the Act, any other statute, the terms of a trust, or any rule of law possessed by a trustee, a grantor, a beneficiary, or a third party; (c) a certification of a trust under Section 1013 of the Illinois Trust Code; (d) a power of attorney that is durable under Article II of the Illinois Power of Attorney Act; (e) an agent's certification under Section 2-8 of the Illinois Power of Attorney Act 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 power of attorney, directive to physicians, natural death statement, living will, and medical or physician order for life-sustaining treatment; (h) a record directing the disposition of an individual's body after death; (i) a nomination of a guardian for the signing individual, including a short-term, temporary, or standby guardian; (j) a nomination of a guardian for a minor child or disabled adult child, including a short-term, temporary, or standby guardian; (k) a supported decision-making agreement under the Supported Decision-Making Agreement Act; (l) a mental health treatment declaration; (m) a community property survivorship agreement; (n) a disclaimer under Section 2-7 of the Probate Act of 1975; and (o) any other record intended to carry out an individual's intent regarding property or health care while incapacitated or on death.
Excludes from a "nontestamentary estate planning document" a deed of real property or
a certificate of title for a vehicle, watercraft, or aircraft.
Provides that 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.
Provides if other law of Illinois or a will or the terms of a trust governing the nontestamentary estate planning document require a nontestamentary estate planning document to be in writing, an electronic record of the document satisfies the requirement.
Provides if other law of Illinois requires a signature on a nontestamentary estate planning document, an electronic signature satisfies the requirement.
Provides that if other law of Illinois or a will or the terms of a trust require or permit 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.

Analysis

Illinois becomes the first state to enact the Uniform Electronic Estate Planning Documents Act (UEEPDA) adopted by the Uniform Law Commission in 2022. The UEEPDA plugs a hole in the Uniform Electronic Transactions Act that excludes from the scope of the UETA any electronic record that is not a “transaction” – “an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs” (815 ILCS 333/2[16]). UETA also excludes any record that is governed by a law “governing the creation and execution of wills, codicils, or testamentary trusts” (815 ILCS 333/3[b][1]). Since wills, codicils, and testamentary trusts are not considered “transactions” because they are not executed by at least two persons, these estate planning documents could not be created and executed electronically. The official comment on UETA Section 3 states, “The scope of this Act is inherently limited by the fact that it only applies to transactions related to business, commercial (including consumer) and governmental matters. Consequently, transactions with no relation to business, commercial or governmental transactions would not be subject to this Act. Unilaterally generated electronic records and signatures which are not part of a transaction also are not covered by this Act.” House Bill 2269 corrects this. It specifically covers estate documents which are “nontestamentary,” – that is, documents which are not a will or contained in a will.

These electronic nontestamentary estate planning documents (see the long list under “Changes” #2, above) satisfy the law and cannot be denied legal effect because they were created and signed in electronic form with electronic signatures. And, most important for Notaries, House Bill 2669 authorizes Notaries to use electronic signatures on electronic nontestamentary estate planning documents, many of which must be notarized.

Read House Bill 2669.