Agreeing to Serve as Custodian
Before anyone can serve as a qualified custodian, they must sign a written statement. This statement confirms they agree to take on the role. It can be signed electronically and stored as an electronic record.
A person shall execute a written statement affirmatively agreeing to serve as the qualified custodian of an electronic will before the person may serve as a qualified custodian. The written statement may be executed by an electronic signature and maintained as an electronic record.
A.R.S. § 14-2521(A)This is not a casual arrangement. The agreement creates a formal duty. The custodian holds the will as a bailee. This means the will remains the testator's property, not the custodian's.
At the time the testator signs the will, the custodian must already have this agreement in place. The custodian then stores the will and all related records.
Stepping Down: Two Paths
A custodian cannot simply walk away. The law provides two paths, depending on whether a successor has been named.
If no successor is designated, the custodian must give the testator thirty days' written notice. They must also return a certified paper original and all related records.
If a successor is designated, the outgoing custodian gives thirty days' notice to both the testator and the successor. They must transfer the electronic records and provide an affidavit confirming the chain of custody.
The affidavit must confirm that the record has not been altered since it was created. It must also list every custodian who has had custody since execution. This chain-of-custody record protects the will from tampering claims.
The testator can also replace the custodian directly. They do so by naming a successor in a writing that meets the same requirements as the electronic will. Once the successor agrees to serve, the outgoing custodian must transfer the record and the affidavit.