Nevada Enacts Notary Provisions

• June 27, 2017
• Elizabeth Dailey

Nevada has amended its provisions regarding qualified custodians and notaries in relation to electronic wills. Effective dates of these provisions range from July 1, 2017 to July 1, 2018.

Definitions

The definitions section has been updated to include definitions of “certified paper original,” “electronic notary public,” and “qualified custodian.” Amendments have been made to the definition of “electronic will,” which is now defined as an instrument, including a codicil, executed by a person in accordance with the requirements set out in NRS 133.085 and which disposes of property upon the testator’s death.

Self-Proving Electronic Wills

Section 10 states that an electronic will is self-proving if three requirements are met:

1. The declarations or affidavits of the attesting witnesses are incorporated into or otherwise logically associated with the electronic will;
2. The electronic will designates a qualified custodian to maintain custody of the electronic record of the electronic will; and
3. The electronic will was in the qualified custodian’s possession at all times prior to being offered for probate.

Qualified Custodians

Section 11 provides that a qualified custodian of an electronic will must not be an heir of the testator or a beneficiary or devise under the testator’s will. Further, the custodian must consistently store electronic records or electronic wills in a system that prevents destruction or alteration of the documents. The custodian must store in the electronic record of an electronic will each of the following:

1. A photograph or other visual record of the testator and the attesting witnesses that was taken contemporaneously with the execution of the electronic will;
2. A photocopy, photograph, facsimile or other visual record of any documentation that was taken contemporaneously with the execution of the electronic will and provides satisfactory evidence of the identities of the testator and the attesting witnesses, including documentation of the methods of identification used; and
3. An audio and video recording of the testator, attesting witnesses, and notary public, as applicable, taken at the time each party electronically signed the electronic will.

Destruction of Electronic Records

Section 12 provides that, with regard to an electronic record of an electronic will, a qualified custodian shall provide access to or information concerning the electronic will to the testator or another person as directed by the testator in writing, and after the death of the testator, the nominated personal representative of the testator. The qualified custodian may, in his or her own discretion, destroy the electronic record at any time:

1. Five or more years after the admission of any will of the testator to probate;
2. Five or more years after the revocation of the electronic will;
3. Five or more years after ceasing to serve as the qualified custodian of the electronic record or the electronic will;
4. Ten or more years after the death of the testator; or
5. One hundred and fifty years after the execution of the electronic will.

Termination of Duties

Section 13 provides that a qualified custodian may cease serving in such capacity without designating a successor custodian by providing to the testator thirty days’ written notice of termination and the certified paper original of, and all records concerning the electronic will. Where a qualified custodian designates a successor custodian, he or she is required to provide thirty days’ written notice of termination to both the testator and the designated successor custodian. He or she must also provide the electronic record of the electronic will to the successor custodian as well as an affidavit swearing that the custodian was qualified, that the electronic record was created at the time the testator executed the electronic will, and that the custodian has maintained custody over the electronic record.

Notaries

Section 16 provides that an electronic notary public may, for all purposes relating to the execution and filing of any document with the court in any proceeding relating to an electronic will, perform any of the following:

1. Notarize the signature or electronic signature of a person who does not physically appear before the electronic notary public if the person is in his or her presence within the meaning of Section 17; and
2. Notarize any document relating to a will, codicil, or testamentary trust.

Section 17 specifies that, for purposes of this title, a person shall be deemed to be in the presence of another person if such persons are in the same physical location or different physical locations but can communicate via audio-video communication.

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