OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
S.B. 46 Bill Analysis
135th General Assembly
Click here for S.B. 46’s Fiscal Note
Version: As Introduced
Primary Sponsor: Sen. Roegner
Effective Date:
Ashley F. Dean, Attorney
SUMMARY
Electronic wills
Permits a will to be executed electronically in addition to current law’s requirement that
a will must be in writing.
Provides the following, regarding an electronic will:
It must be a “record” that is readable as text at the time it is “signed”;
It must be signed at the end by the testator or by another individual in the testator’s
name, in the testator’s physical or “electronic presence,” and by the testator’s
direction;
It must be signed in the physical or electronic presence of the testator by two or
more competent witnesses located in this state, who must sign the will within a
reasonable time after witnessing the testator’s signing and must subscribe and
attest their signatures;
The testator or the individual who will sign the will in the testator’s name and the
witnesses may review the contents of the will prior to signing it;
If the testator is a vulnerable adult, the witnesses must sign the will in the testator’s
physical presence;
It must be acknowledged before a notary public who must make the certification by
taking an acknowledgment under the Notaries Public Law and must attest that the
testator appears to be of sound mind and not subject to duress, fraud, or undue
influence;
Prior to the acknowledgment of the will, the notary public must require the
presentation of a government-issued identification credential by, and perform the
credential analysis and identity proofing of, the testator and the witnesses, in
accordance with the procedures under the Notary Public Modernization Act;
April 21, 2023
Office of Research and Drafting LSC Legislative Budget Office
The notary public must terminate the certification proceedings if the notary public
has reasonable cause to believe during the course of such proceedings that the
testator does not appear to be of sound mind or is subject to duress, fraud, or undue
influence;
The procedures for executing an electronic will must be recorded by electronic
media containing both audio and visual components, the process for such recording
must be followed, and the format of the recording must be preserved and stored in
a safe, secure, and appropriate manner.
Defines the following among other terms used in the bill:
“Record” means information that is inscribed in a tangible medium or that is stored
in an electronic medium and is retrievable in perceivable form;
“Sign” means to do either of the following with the present intent to authenticate or
adopt a record: execute or adopt a tangible symbol, or affix to or logically associate
with a record an electronic symbol or process;
“Electronic presence” means the relationship of two or more individuals in different
locations communicating in real time to the same extent as if the individuals were
physically present in the same location;
“Vulnerable adult” means a person who is 18 years of age or older and whose ability
to perform daily normal activities or to provide for the person’s own care or
protection is impaired due to a mental, emotional, sensory, or long-term physical or
developmental disability, brain damage, or the debilitating infirmities of aging.
Permits the testator to request that a copy of the certified electronic be sent to the
testator and any other person designated by the testator in specified forms and
manners.
Expands the definition of “consumer transaction” for purposes of the Consumer Sales
Practices Law, to also mean services provided by a notary public to a testator in the
acknowledgement, certification, and attestation pertaining to the testator’s electronic
will.
Provides that on and after the bill’s effective date, Ohio laws applicable to wills apply to
electronic wills unless it is clear from the context or meaning of the provision of the law
that it applies only to a will in writing or a will other than an electronic will.
Permits a copy of an electronic will to be deposited by the testator or by some other
person for the testator in the office of the probate court judge in the county in which
the testator lives, in the same manner as the deposit of a will in writing.
Provides that a document is to be treated as an electronic will if a probate court finds
that the proponent of the document as a purported electronic will has established, by
clear and convincing evidence, that the decedent prepared the document or caused it to
be prepared, signed the document and intended it to constitute the decedent’s will, and
the above requirements for making an electronic will are complied with.
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Permits an executor to file an action in the probate court to recover court costs and
attorney’s fees from the attorney, if any, responsible for the execution of the document
as a purported will upon a finding by the court under the preceding dot point.
Specifies that an electronic will may be revoked by the testator’s subsequent will
revoking all or part of the will expressly or by inconsistency, or by a “physical act” that
the testator, with the intent of revoking all or part of the will, performed the act or
directed another individual who performed the act in the testator’s physical presence.
Defines “physical act” as used in the preceding dot point as including the use of a delete
or trash function on the computer pertaining to the electronic will or by typing or
writing “revoked” on an electronic or printed copy of the electronic will.
Provides that an oral will, made in the last sickness, is valid in respect to personal
property if it is transcribed electronically and subscribed by two competent
disinterested witnesses within ten days after the speaking of the testamentary words
and who were in the physical or electronic presence of the testator.
Requires that the witnesses to an oral will who were, at the time the testamentary
words were spoken, in the testator’s electronic presence be located within this state.
Requires a complaint in the probate court to have an electronic will declared valid to
contain the following statements:
That a “copy” (copy of the record of an electronic will that is readable as text) of the
will has been filed with the probate court and that the will is an electronic will;
That the will was signed at the end by the testator or by another individual in the
testator’s name, in the testator’s physical or electronic presence, and at the
testator’s express direction;
That the will was signed in the physical or electronic presence of the testator by two
or more competent individuals and that all of the above requirements for the
execution of an electronic will are complied with.
Declaration governing the use or continuation, or the
withholding or withdrawal, of life-sustaining treatment
Permits a declaration governing the use or continuation, or the withholding or
withdrawal, of life sustaining treatment to be executed electronically by the declarant or
another individual at the declarant’s direction by signing the “record” at the end of the
declaration, stating the date of its execution, and having it witnessed or acknowledged
as follows:
The electronic declaration must be witnessed by two individuals with qualifications
specified in continuing law and in whose physical or electronic presence the
declarant, or another individual at the declarant’s direction, signed the declaration;
If the declarant is a vulnerable adult, the witnesses must sign the will in the physical
presence of the declarant;
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The electronic declaration must be certified and attested by a notary public through
an electronic notarization or as an online notarization under the Ohio Notary Law.
Transfer on death designation affidavit
Allows a transfer on death designation affidavit to be executed in an electronic manner,
provides that a certified copy or a copy of the affidavit that is readable as text must be
considered to be a certified copy or a copy of the record of the affidavit, and requires a
copy of that affidavit to be offered for recording with the county recorder.
Durable power of attorney for health care
Permits a durable power of attorney for health care to be executed electronically by
which the principal must sign the record associated with, and at the end of, the
instrument and state the date of its execution; and requires the instrument to be
witnessed by at least two individuals who have the qualifications under continuing law,
or are certified and attested by a notary public as follows:
If the electronic durable power of attorney for health care is witnessed, requires the
principal to sign the instrument and acknowledge the signature at the end of the
instrument in the physical or electronic presence of each witness;
If the principal is a vulnerable adult, requires the witnesses to sign the will in the
physical presence of the principal;
If the electronic durable power of attorney is certified and attested, requires a
notary public to certify and attest the instrument through an electronic notarization
or as an online notarization under the Ohio Notary Law.
Requires that the electronic execution of a durable power of attorney for health care
and its witnessing or acknowledgment, whichever is applicable, be recorded by
electronic media containing both audio and visual components; and requires the format
of the recording to be preserved and stored in a safe, secure, and appropriate manner.
Power of attorney
Allows a power of attorney to be executed electronically by the principal signing the
instrument or by another individual directed by the principal to sign the principal’s
name on the instrument in the electronic presence of the principal.
Provides that a signature on an electronic power of attorney is presumed to be genuine
if the principal or the principal and other individual directed by the principal to sign the
principal’s name acknowledges the signature before a notary public performing an
electronic notarization or an online notarization pursuant to the Ohio Notary Law.
Recording by county recorder
Provides that an electronic durable power of attorney for health care or an electronic
declaration for the continuation or use, or the withholding or withdrawal, of
life-sustaining treatment is recorded by presenting a “copy of the declaration” or the
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electronic durable power of attorney for health care retrieved and copied in readable
text.
Defines “copy of a declaration” as a printed or electronic copy of a declaration in
writing, a copy of the record of a declaration executed electronically that is readable as
text, or an electronic copy of the record of a declaration executed electronically.
Requirements for notary public
Prohibits a notary public from notarizing an electronic document that is a will, trust,
power of attorney, or other estate planning document unless the notary has filed with
the Secretary of State’s office satisfactory evidence that the notary has obtained a bond
and errors and omissions insurance.
Specifies the requirements for such bond and errors and omissions insurance.
Requires the Secretary of State to adopt rules specifying the types of electronic estate-
related documents that require a bond and errors and omissions insurance.
TABLE OF CONTENTS
Overview ......................................................................................................................................... 6
Wills Law ......................................................................................................................................... 6
Electronic wills ............................................................................................................................. 6
How executed ......................................................................................................................... 6
Recording of procedure for executing an electronic will ....................................................... 7
Other provisions ..................................................................................................................... 8
Notary public services as a consumer transaction ...................................................................... 8
Applicability of current laws ................................................................................................... 8
Definitions .............................................................................................................................. 9
Deposit of copy of will in judge’s office.................................................................................. 9
Document purporting to be an electronic will ..................................................................... 10
Revocation ............................................................................................................................ 10
Validity of oral wills .............................................................................................................. 10
Real or personal property devised, bequeathed, or appointed to trustee of existing trust 11
Foreign wills .......................................................................................................................... 11
Determination of validity of will during testator’s lifetime ................................................. 11
Wills in writing ........................................................................................................................... 12
Revocation of will in writing ................................................................................................. 12
Miscellaneous changes.............................................................................................................. 13
Depositions by commission .................................................................................................. 13
Court record distinguished from “record” in electronic wills .............................................. 13
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Declaration governing the use or continuation, or the withholding or withdrawal, of life-
sustaining treatment..................................................................................................................... 13
Transfer on death designation affidavit ....................................................................................... 14
Durable power of attorney for health care .................................................................................. 15
Power of attorney ......................................................................................................................... 16
Recording by county recorder ......................................