Electronic Wills in Florida -Notes (EP.2)

Here is a quick run-down on what we spoke about on our latest episode!

We won't go into full detail here but we will briefly outline the important topics. This is far from a comprehensive explanation of the new laws. For further details, refer to the links provided below.

Last year the Florida House and Senate passed CS/CS/HB 409, a bill that authorizes the use of remote online notarization and the execution of testamentary documents through an online medium.

RON (Remote Online Notarization). Already in effect (Jan 1st, 2020). There are very important details as to the process for registering and the process on how the online notarization must take place but in short the Staff Analysis (cited below) states:

"The bill allows an online notary public to perform any function as an online notarization authorized under ch. 117, F.S., excluding solemnizing matrimony rites. If a notarization requires a principal to appear before the online notary public, the principal is allowed to appear by means of audio-video communication technology."

For more information on RON, refer below or click "Legislative Staff Analysis."

Electronic Wills. (Effective July 1st, 2020) The bill allows a testator to execute their will remotely. The bill DOES NOT go as far as replacing the existing Code. The execution of a will must still include the testator's signing in the "presence" of two attesting witnesses who then sign in the "presence" of each other. The new law effectively adds an alternate presence rule that allows the witnesses to attest to the testator's and each other's signing via remote audio/visual conference. There are obviously nuances to the rule but the general process is as follows:

Unless the testator is a vulnerable adult, the witnessing of a will execution can be done remotely if:

1. They are supervised by a notary public,

2. The signing is part of an online notarization session in accordance with s. 117.265, F.S.,

3. The witness hears the signer make a statement acknowledging that the signer has signed the electronic record, and

4. The testator provides verbal answers to a series of pre-determined questions presented by the online notary public. The list of pre-determined questions are outlined in the analysis.

What does any of this mean? The effect of this new rule is anyone's guess but we can speculate. First, we worry that the additional safeguards put in place may not be enough to deter or stop fraudulently behavior when executing wills. In addition, the existence of malicious software may pose a serious issue to the integrity of a will executed remotely and the security of important testamentary documents kept on a hard drive. We may also see a spike in probate litigation as disinherited family members may see remotely executed documents as subject to extra scrutiny.

What do you think? Leave us a comment and we may use your input on our next podcast!

We know this was an extremely condensed and fairly superficial outline on the new laws. For more information make sure to check our resources below.

Resources:

1. https://probatestars.com/electronic-wills-in-florida/

2. Legislative Staff Analysis

3. Digital Wills Has The Time Come for Wills to Join the Digital Revolution.pdf

The above information only pertains to Florida state probate law. This article and the information within are not to be considered legal advice. If you need legal advice or believe you may need legal counsel, please contact an attorney licensed in your state. If you live in the state of Florida and require assistance with your estate plan, feel free to contact us using our contact form conveniently located on our website.