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Written by Thomas Upchurch
As of July 2020, Florida entered a new digital era by authorizing electronic wills, which are created, signed, witnessed, and stored entirely in an electronic format. Changes to Florida law allowing remote, online notarization of documents via a live, two-way video conference (think Zoom) with a notary paved the way for electronic wills to be created and executed, or signed, without ever leaving the house.
Electronic wills serve the same purpose as traditional wills; they also have the same legal effect. But the process of creating, executing, and storing an electronic will differs greatly from the traditional process involving a paper will. Electronic wills could offer more access, convenience, and efficiency in the estate planning process, but there are important real-world limitations to consider.
Florida’s HB 409, Electronic Legal Documents, sometimes mislabeled as the Florida electronic wills act, updates these general requirements to allow an electronic will to be entirely created, signed, and stored electronically.
An electronic will can now be in electronic writing. And while an electronic will could be electronically signed by a testator and witnesses located in the same room, the new law authorizes and contemplates a process whereby the execution of the electronic will occurs over the internet on a recorded video conference. The testator and witnesses apply electronic signatures to the electronic will from the individuals’ separate, remote locations.
Notaries public in Florida generally confirm the identity of people signing important documents and almost always participate in the traditional will execution process. Notaries simplify the probate process by ensuring a will is “self-proving.” But for an electronic will, a trained, certified online notary must supervise the electronic signing process.
Except for vulnerable adults, any competent adult in Florida may now create an electronic will. While an electronic will works the same way as a traditional will, there are important differences in the process of executing an electronic will in Florida and storing the electronic will.
Types of Signatures: For a traditional will to be valid in Florida, the testator must execute it— signing it at the end of the document— in the presence of two witnesses. The testator, for example, sits in a conference room with two witnesses and a paper copy of a will. The testator then takes a pen and physically signs the paper will; the witnesses then take turns physically signing the same will in the same room.
Electronic wills, however, may be executed with the supervision of an online notary over a recorded video conference with the notary, testator, and witnesses all in different locations. Instead of signing a paper will with a pen, the testator and witnesses make an electronic signature, which is an “electronic mark visibly manifested in a record as a signature and executed or adopted by a person with the intent to sign the record,” on an electronic document. § 732.521, Fla. Stat. In doing so, the testator and witnesses each make verbal statements in the video conference indicating they have signed the electronic will.
Review The Complete Guide to Florida Wills for more actionable information about issues involving executing a will in Florida.
Safekeeping and Storage: With traditional wills, lawyers and law firms store wills in a fireproof safe in their offices, a bank’s safe deposit box, or another confidential, secure location. Florida law, however, does not require a traditional will to be stored in a particular way. But Florida’s new wills statute governing electronic wills provides for electronic wills to only be valid if they can be stored electronically by a “qualified custodian,” an individual in Florida or a Florida business with specialized data storage and security capabilities.
Differing Scrutiny for the Testator: While a testator must have “testamentary capacity” to execute a valid will of any type in Florida, when it comes to the remote, digital execution of an electronic will, Florida law adds a distinct, heightened bar for who may participate. Florida prohibits the use of remote, electronic signing by anyone deemed a “vulnerable adult.” Accordingly, for some Floridians seeking a will, the traditional will process provides as much access to estate planning as an electronic will.
The Florida governor, citing safety concerns, vetoed electronic wills in 2017. Thus, the new law enacted in 2020 contained significant safeguards for the electronic will process by instituting anti-fraud measures for electronic signatures, restricting who may remotely sign an electronic will, and heavily regulating the storage and protection of electronic wills and related electronic data.
Remote Electronic Signature Process Anti-Fraud Protections. Online notaries must supervise the remote, electronic signature process of an electronic will on a recorded video conference. An online notary must confirm the identities of the testator and witnesses using authentication, and the testator must answer screening questions. Specifically, the notary requires remote presentation of government-issued identification, performs a credential analysis of the identification, and initiates knowledge-based authentication questions.
Additionally, the testator must then answer a series of questions addressed at determining whether the testator is a “vulnerable adult,” discussed below, and therefore ineligible to execute an electronic will without being in the physical presence of the witnesses.
The testator must also answer a series of questions to screen for undue influence or coercion. In sum, the process for remotely executing an electronic will exceeds the protections offered at an in-person signing of a traditional will.
Vulnerable Adult Exclusions. Anyone deemed a “vulnerable adult” may not remotely, electronically sign a will. Any electronic will executed this way by a “vulnerable adult” is not valid. A vulnerable adult is defined as:
a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging
Qualified Custodian Requirements. Only individuals or corporations that meet heightened technology requirements may maintain custody or store an electronic will. A qualified custodian must:
Simply put, keeping custody of an electronic will is the territory of technology companies with the infrastructure and expertise to handle sensitive electronic data. While this requirement provides protection to those making electronic wills, it likely will limit the widespread adoption of electronic wills.
Electronic wills make it easier than ever to remotely create and execute a will. However, the ambiguity surrounding what constitutes a “vulnerable adult” will limit its use among many populations, including older Floridians. Because a remotely executed electronic will is invalid if a testator is later found to qualify as a “vulnerable adult” (despite still having testamentary capacity), many lawyers may advise against electronic wills out of an abundance of caution. Further, the strict requirements for “qualified custodians” could limit use of electronic wills.
However, as decisional law develops around electronic wills, and lawyers and clients become more comfortable with remote-working technologies, adoption could increase. And electronic wills, and the ease of remote execution, may entice digitally engaged audiences less likely to have wills to finally take the important step of working with an estate planning attorney.
In sum, most adults in Florida may now create an electronic will from the comfort of their own homes using the types of digital technologies that have now become the new normal. While electronic wills in Florida have the same legal effect as traditional wills, the flexibility they offer in electronic creation, remote execution, and secured digital storage could be a precursor of coming technological advancements in how clients receive legal services, even if some of their current limitations prevent widespread use.