AZ ARS 14-2521: Qualified Custodian; Agreement to Serve; Ceasing Service

Statutory Text (Verbatim)

14-2521. Qualified custodian; agreement to serve; ceasing service

A. 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.

B. Except for a person ceasing to serve as provided in subsection C, paragraph 1 of this section, a person may not cease serving as a qualified custodian until a successor qualified custodian executes the written statement prescribed by subsection A of this section.

C. A person serving as a qualified custodian may cease serving as a qualified custodian:

1. If the person does not designate a successor qualified custodian, by providing the testator with both of the following:

(a) A thirty-day written notice that the person will cease to serve as a qualified custodian.

(b) The certified paper original of the electronic will and all records concerning the electronic will.

2. If the person designates a successor qualified custodian, by providing all of the following:

(a) A thirty-day written notice that the person will cease to serve as a qualified custodian to the testator and the successor qualified custodian.

(b) To the successor qualified custodian, the electronic record of the electronic will and an affidavit that states all of the following:

(i) That the person is eligible to act as a qualified custodian in this state and is the qualified custodian designated by the testator in the electronic will or was designated to act in that capacity by another qualified custodian pursuant to this paragraph.

(ii) That an electronic record of the electronic will was created at the time the testator executed the electronic will.

(iii) That the electronic record of the electronic will has been in the custody of one or more qualified custodians since the execution of the electronic will and has not been altered since the time it was created.

(iv) The identity of all qualified custodians who have had custody of the electronic record of the electronic will since the execution of the electronic will.

D. For the purposes of making the affidavit prescribed by subsection C, paragraph 2, subdivision (b) of this section, the person may rely conclusively on any affidavits provided by a predecessor qualified custodian if all of these affidavits are provided to the successor qualified custodian.

E. If a testator designates a successor qualified custodian in a writing executed with the same formalities required for the execution of an electronic will and the successor qualified custodian executes the written statement prescribed by subsection A of this section, the person serving as qualified custodian shall cease serving in that capacity and shall provide the successor qualified custodian with both of the following:

1. The electronic record of the electronic will.

2. The affidavit prescribed by subsection C, paragraph 2, subdivision (b) of this section.

F. If a qualified custodian is an entity, an affidavit of a duly authorized officer or agent of the entity constitutes the affidavit of the qualified custodian.

G. A qualified custodian maintains an electronic will as a bailee, and the electronic will is the property of the testator and not the qualified custodian.

Rule Summary

ARS § 14‑2521 governs a qualified custodian’s affirmative agreement to serve, limitations on unilateral resignation, and the exclusive statutory pathways for ceasing service, while expressly characterizing the custodian as a bailee and not an owner of the electronic will.

Agreement to Serve

A person may not serve as a qualified custodian unless the person:

• executes a written statement affirmatively agreeing to serve, and
• does so before acting as a qualified custodian.

The written statement may be electronically signed and maintained as an electronic record.

General Rule Against Unilateral Cessation

Except as provided in subsection (C)(1), a qualified custodian may not cease serving until a successor qualified custodian executes the written agreement required by subsection (A).

Permissible Methods of Ceasing Service

A qualified custodian may cease serving only as follows:

• (1) No Successor Designated:* The custodian must provide the testator with:
  • thirty‑day written notice, and
  • the certified paper original of the electronic will and all records concerning the electronic will.
• (2) Successor Designated: The custodian must provide:
  • thirty‑day written notice to both the testator and the successor custodian, and
  • to the successor custodian:
    • the electronic record of the electronic will, and
    • a custodian affidavit stating:
      • eligibility to serve and authority to act,
      • that the electronic record was created at execution,
      • that custody has been continuous and unaltered, and
      • the identity of all prior qualified custodians.

Reliance on Prior Custodian Affidavits

For purposes of the successor‑transfer affidavit, a custodian may rely conclusively on affidavits provided by predecessor custodians, if all such affidavits are provided to the successor.

Direct Testator Designation of Successor

If the testator designates a successor custodian in a writing executed with electronic‑will formalities, and the successor executes the written agreement to serve, the incumbent custodian automatically ceases serving and must transfer:

• the electronic record of the will, and
• the required custodian affidavit.

Entity Custodians

If the qualified custodian is an entity, an affidavit executed by a duly authorized officer or agent satisfies the affidavit requirement.

Bailment and Ownership

A qualified custodian:

• holds the electronic will as a bailee, and
• does not own the electronic will, which remains the property of the testator.