Agreeing to Serve as Custodian
Before anyone can serve as a qualified custodian, they must execute a written statement affirmatively agreeing to take on that role. This written agreement can itself be signed electronically and maintained 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 obligation. The custodian holds the electronic will as a bailee, meaning the will remains the property of the testator, not the custodian. This distinction matters if the custodian's own business or assets face legal issues.
Stepping Down: Two Paths
A custodian cannot simply walk away. Arizona law provides two procedures depending on whether a successor custodian has been identified.
If no successor is designated, the custodian must give the testator thirty days' written notice and return a certified paper original of the electronic will along with all related records. If a successor custodian is designated, the outgoing custodian must provide thirty days' notice to both the testator and the successor, transfer the electronic record, and provide an affidavit confirming the chain of custody and that the electronic record has not been altered.
The testator can also replace the custodian directly by designating a successor in a writing executed with the same formalities required for the electronic will itself. Once the successor agrees to serve, the outgoing custodian must transfer the electronic record and the chain-of-custody affidavit.
