In 2020 electronic wills became a reality in Florida, with the implementation of a law permitting remote notarization of most legal documents. Electronic wills in Florida are available beginning on July 1, 2020.
What Are the Requirements For Executing An Electronic Will?
Under the new law, the signing of wills can be conducted entirely electronically online via remote presence through video. Section 732.522, Florida statutes, governs the method and place of execution of electronic wills, and states:
Method and place of execution.—For purposes of the execution or filing of an electronic will, the acknowledgment of an electronic will by the testator and the affidavits of witnesses under s. 732.503, or any other instrument under the Florida Probate Code:
(1) Any requirement that an instrument be signed may be satisfied by an electronic signature.
(2) Any requirement that individuals sign an instrument in the presence of one another may be satisfied by witnesses being present and electronically signing by means of audio-video communication technology that meets the requirements of part II of chapter 117 and any rules adopted thereunder, if:
(a) The individuals are supervised by a notary public in accordance with s. 117.285;
(b) The individuals are authenticated and signing as part of an online notarization session in accordance with s. 117.265;
(c) The witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and
(d) The signing and witnessing of the instrument complies with the requirements of s. 117.285.
(3) Except as otherwise provided in this part, all questions as to the force, effect, validity, and interpretation of an electronic will which comply with this section must be determined in the same manner as in the case of a will executed in accordance with s. 732.502.
(4) An instrument that is signed electronically is deemed to be executed in this state if the instrument states that the person creating the instrument intends to execute and understands that he or she is executing the instrument in, and pursuant to the laws of, this state.
In sum, this new law allows the signing of wills to be completed utilizing remote notarization and remote witnesses via video services. The testator, witnesses, and notary do not need to be in the same physical location.
The other formalities of will execution (other than everyone being in the actual presence of each other) are the same for electronic wills as they are for standard wills in Florida. Instead of being in the actual presence of each other, the witnesses to the electronic will must hear the testator acknowledge his or her signature. Failure to comply with the testamentary formalities can render the will invalid.
Notaries and Qualified Custodians of Electronic Wills
Notaries who are going to notarize Florida electronic wills must have specialized training, and will be required to ask the testator a series of questions, and receive verbal answers from the testator, including:
- Are you 18 years of age or older?
- Are you of sound mind?
- Are you signing this will voluntarily?
- Are you under the influence of any drugs or alcohol that impairs your ability to make decisions?
- Has anyone forced or influenced you to include anything in this will which you do not wish to include?
- Did anyone assist you in accessing this video conference? If so, who? Where are you? Name everyone you know in the room with you.
“Qualified Custodians” will be charged with safekeeping Florida electronic wills until the testator dies. A qualified custodian of an electronic will:
- Is domiciled in and a resident of Florida or is incorporated or organized in Florida;
- Consistently employs a system for maintaining custody of electronic records and stores electronic records containing electronic wills under the system; and
- Furnishes for any court hearing involving an electronic will that is currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualified custodian’s policies and procedures.
How Is An Electronic Will Admitted To Probate?
After the death of the testator, the electronic will may be filed in the appropriate Florida county. The electronic will can be admitted to probate if it is filed through Florida’s e-filing portal and deemed to be an original of the electronic will. A paper copy of an electronic will can also be admitted to probate as an original will if certified by a notary public to be a true and correct copy.
How Do You Revoke An Electronic Will Under Florida Law?
Pursuant to Section 732.506, Florida Statutes:
An electronic will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence.
How are Vulnerable Adults Protected?
The new Florida laws regarding electronic wills attempt to build in safeguards for vulnerable adults.
For example, a Durable Power of Attorney that gives “super powers,” discussed here, cannot be signed electronically under this law.
In addition, “vulnerable adults” as defined by section 415.102 cannot execute documents remotely. The signature must be witnessed in person. An overview of these and additional protective measures can be found in the Legislative Staff Analysis for the electronic will legislation.
Are Electronic Wills Going To Become Commonplace?
In Florida, not everyone agrees that the move toward electronic wills is a good thing.
The Real Property, Probate, and Trust Law Section of the Florida Bar warned that the ability to make electronic wills could invite fraud and evildoers who seek to take advantage of Florida’s vulnerable aging population. Even with the safeguards built in, a concern exists that the procedure for execution of electronic wills makes it easier to take advantage of Florida’s aging population.
These concerns, and general resistance to change, could be an impediment to electronic wills in Florida becoming commonplace.
Electronic wills will likely have to find their footing in Florida. New procedures, new technology, and specialized training are all roadblocks to having electronic wills become widely and consistently used. To read more about potential barriers to the widespread implementation of electronic wills, see Digital Wills: Has The Time Come for Wills to Joint the Digital Revolution? written by Professors Gerry W. Beyer and Claire G. Hargrove.
For an interesting discussion of technology’s impact on Trusts and Estates practice, read Technology’s Impact on the Changing Future of the Trusts and Estates Practice, written by Professor Gerry W. Beyer.