Florida Legislature Approves Electronic Wills
Even at a time when we keep most of our lives on our smartphones and tablets, estate planning has largely remained a paper affair. But that may soon change, at least here in Florida, as the state legislature has approved a comprehensive bill that would allow residents to create legally binding “electronic wills.” The legislation would even allow for remote notarization of a wide variety of estate planning documents.
Wills Could Be Witnessed, Notarized Remotely
Under existing Florida law, a will must be in writing and signed by the testator–the person making the will–in the presence of at least two witnesses. A will does not need to be notarized in order to be legal. However, it is common practice for the testator and the witnesses to sign a “self-proving” affidavit in the presence of a notary. This makes it easier for the will to later be admitted in probate court without having to locate the witnesses after the testator’s death.
House Bill 408, which received final approval from both houses of the state legislature on May 2, would create a new law authorizing individuals to make “electronic wills.” An electronic will would include any “testamentary instrument” that is “executed with an electronic signature.” So it would be possible to amend or revoke a preexisting paper will via an electronic will.
HB 408 would further permit witnesses to be present at the signing of the will “by means of audio-video communication technology.” Similarly, a notary public could witness a self-proving affidavit remotely. But an electronic will would only be considered “self-proved” under HB 408 if the document “designates a qualified custodian.”
The qualified custodian is a person or entity who would be responsible for safekeeping and control of the electronic will after it is executed. The qualified custodian would need to maintain continuous possession over the electronic will until it is needed for probate, i.e., the testator has died. At that time, the qualified custodian would need to certify–under oath–that the electronic will submitted to the probate court is the signed original and “has not been altered in any way since the date of its execution.”
So who could actually serve as a qualified custodian for electronic wills? HB 408 sets the following requirements:
- The qualified custodian must be an individual who lives in Florida, or a corporate entity that is organized or has its principal business office in Florida.
- The qualified custodian must maintain a “secure system” to secure electronic wills and associated records.
But what happens if the qualified custodian goes out of business? In that case, HB 408 requires the outgoing custodian to designate a successor qualified custodian, who can only take possession of the electronic will with the testator’s consent. The testator may also designate their own successor custodian. And in extreme cases, the Florida Attorney General may ask a judge to appoint a “receiver” to take possession of any electronic wills in the possession of a qualified custodian who has ceased doing business.
Speak with a Florida Estate Planning Lawyer Today
If approved by the governor, HB 408 will take effect in January 2020. It remains to be seen how quickly Florida residents will adopt electronic wills. Keep in mind, HB 408 does not require anyone to make an electronic will–you still have the option of going with a traditional paper document.