Effective August 1, 2026, it will be possible for Minnesota residents to electronically sign certain estate planning legal documents. In this month’s update, I briefly summarize the “Uniform Electronic Estate Planning Documents Act”1 that allows for Minnesota residents to e-sign and electronically store legal documents. As with many areas of life, just because it is now legally possible to use technology does not mean that it is in your family’s best interests to do so. Even after the new legislation, Minnesota residents may continue to sign estate planning documents in a traditional manner and have their executed documents stored with their law firm. Our firm’s general approach to signing formalities does not include any quills or powdered whigs, but these formalities might otherwise resemble the signing formalities that occurred in Philadelphia in July of 1776.
Legal Signing Formalities
Estate planning legal documents must be signed in the following manner:
- Last Will & Testament
A Will is legally valid in Minnesota if the signing person signing the document (“signatory”) is at least 18 years of age, signs his or her Will in the presence of any two individuals, and these two individuals sign the Will as witnesses. Our firm’s practice is to prepare a “Self-Proved Affidavit” to accompany the Will. This affidavit must be signed by the Testator, both of the witnesses, and notarized by a notary public. Unlike the other documents, a Last Will cannot be e-signed, but must be signed by hand and in the physical presence of two witnesses. The Last Will must be in paper form and capable of physical retrieval. 2
- Health Care Directive
A Minnesota resident may sign his or her health care directive in the presence of two witnesses or a notary public.
- Statutory Short Form Power of Attorney:
A Minnesota resident can appoint an “attorney-in-fact” under a power of attorney through any written document that is dated and signed. However, since a handwritten note is not likely to be accepted by a third-party custodian, it is certain the best practice approach to use the specific form endorsed by the legislature, called the “Minnesota Statutory Short Form Power of Attorney.” Unlike a “general” power of attorney, this “statutory” form power of attorney must be signed in the presence of a notary public.
- Trust Agreement:
By law, a trust need not even be in writing; so long as the trust creator demonstrates an intention to create a trust. The best practice for a Minnesota trust agreement, however, is to have the trust agreement signed in the presence of a notary public.
Electronic Signatures and Storage
For those considering signing by electronic means, the following definitions apply:
Electronic Signature:
A document can now be signed through any type of electronic signature that is “attributable” to the signatory. 3 Especially in circumstances where multiple people have access to an email or login account, it is not clear how attribution to one person can be proven.
Virtual Presence:
A notary public can conduct a virtual meeting with the signatory and complete an affidavit as to being in the “presence” of the signatory. While telephonic communication is not sufficient to qualify as “presence,” a camera-based application like Teams, Zoom, or other video teleconference qualifies as “presence.” 4
Electronic Storage:
It is not necessary to maintain a paper copy of the electronic-signed document, so long as the electronically-stored document can be subsequently retrieved. Steps should be taken so that the family members who need to retrieve the documents have access during lifetime.5
- Providing Peace of Mind
Our firm’s mission is to provide our clients the peace of mind that comes from knowing that their affairs are in order. Even with these changes to Minnesota law, it will continue to be our firm’s general recommendation that, whenever possible, the documents signed by our clients be signed through traditional signing formalities. Our clients have the peace of mind that comes from knowing that their documents are legally valid, that their family will be able to access their legal documents following their death, and that a team of qualified professionals will be ready to help surviving family.
1 Minn.Stat.§533.01
2 Minn.Stat.§533.02(6). The two witnesses to a Will can have any relationship with the Testator (e.g., a Will could be legally witnessed by a spouse and another family member). The best practice approach, however, is to direct that both witnesses are individuals who are “disinterested;” that is, not related to the Testator. This serves to avoid any characterization that the Will was the product of undue influence.
3 Minn.Stat.§533.14. An e-signature made on any device is sufficient. “Attribution” to a person is any act shown in any manner, taking into account the circumstances.
4 Minn.Stat.§533.02 (9).
5 Minn.Stat.§533.17.
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