Florida’s New Electronic Wills Law Takes Effect
On January 1, 2020, Florida’s Electronic Documents Act finally takes effect. Among other provisions, this Act allows for the execution of “electronic wills.” Traditionally, a will is signed by the person making the document (the testator) in the physical presence of at least two witnesses. The witnesses do not need to read the will first, but they must sign it at the testator’s direction in the presence of the testator and the other witnesses. And while a will does not need to be notarized, it is common practice to include a notarized “self-proving” affidavit with a will, which enables a court to admit a will to probate without the need for locating any of the witnesses first.
The Electronic Documents Act (EDA) does not abolish or replace these traditional rules for making a will. Instead, it creates an additional option in the form of an “electronic will.” This is basically the same as any other will, except that it is signed and witnessed remotely–i.e., everyone does not need to physically be in the same room together.
Requirements for Making an Electronic Will
Under the EDA, an electronic will must be notarized. The notary must also be specially trained in the new procedures governing electronic wills. These procedures include asking the testator a series of questions, which include:
- 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?
- Who is the room with you?
The purpose of these questions is to determine whether or not the testator should be classified as a “vulnerable adult” under Florida law. If the testator gives unsatisfactory answers to any of the questions listed above, the notary is legally prohibited from proceeding with the electronic will. Now, this does not mean the testator is barred from making a will at all. Rather, the will must simply be executed in the traditional manner, i.e., in the physical presence of witnesses and a notary.
Storing Electronic Wills
Another key difference between electronic and traditional wills is how they must be stored prior to the testator’s death. With a traditional will, the testator is generally responsible for keeping the original or giving it to someone else for safekeeping. But with an electronic will, the EDA expressly requires the document designate a “qualified custodian” to maintain the original. The qualified custodian is a business authorized to operate in Florida that “consistently employs a system for maintaining custody of electronic records.”
If you have additional questions about electronic wills and would like to speak with a qualified Fort Myers estate planning attorney, contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free initial consultation.