Electronic Wills? The Future of Will Drafting in Florida?

Until a recent  Florida Real Property, Probate and Trust Law (“RPPTL”) meeting, this author had never heard of an electronic will statute. An organization, independent of RPPTL and the Florida Bar, proposed a bill in the legislature, (the “Act”) with the help of Senator Passidomo, enacting electronic wills, effective July 2017!!!  Since the proposal,  members of  RPPTL have been working diligently in the legislative process because the Act, as originally proposed, did not provide safeguards to protect the integrity of will signing and the protection of Florida citizens from abuse in this area. As of today’s date, the legislature is in session and so far this author has seen a few amendments so it is not clear as to what will be the final result.

While it is impossible to list all the details of the Act in this short blog, the key provisions in the latest amendment are as follows:

1. The Act creates an electronic will defined as a will that exists in an electronic record that is unique and identifiable, is electronically signed by the testator in the presence of 2 witnesses and  electronically signed by the witnesses in the presence of the testator and each other.
2. The Act defines the method of execution:
   1. The individuals can be in the same physical location; or
   2. In different physical locations but must be able to communicate with each other by means of live video conference. There are numerous safeguards in the proposed statute which have been drafted by members of RPPTL for video conferencing. Among a few is the testator can not be in an end-stage condition, the signal transmission must be secure from interception, certain questions must be asked of the testator, the persons communicating must establish identity of the testator and must demonstrate awareness of the events taking place and one of the communicating persons must be a Florida attorney.
3. The Act provides for a self proof of an electronic will:
   1. The acknowledgement of the electronic will by the testator and the affidavit of the witnesses must be made in accordance with Florida law and be part of the electronic record containing the electronic will;
   2. The electronic will must provide for a qualified custodian;
   3. The qualified custodian must make certain representations under oath;
   4. The electronic will must be executed in conformity with this Act; and
   5. The electronic record that contains the electronic will must remain in the custody of the qualified custodian at all times prior to being offered for probate.
4. The Act creates and defines a “qualified custodian” as a person or entity who:
   1. Is not named as a fiduciary ;
   2. Is domiciled in and a resident or legal entity in this state;
   3. Must have a system to  protect  the electronic record from destruction, alteration or unauthorized access and to detect any change to the electronic record;
   4. Complies with requirements for furnishing to court the electronic record;
   5. Complies with the provisions as to whom may have access to the electronic record; and
   6. Complies with the provisions if a qualified custodian resigns.

As of this date, several controversial issues remain. The current Act (1) applies to not only wills but also durable powers of attorney and living wills, (2) permits remote witnessing and notarization and (3) allows individuals who are NOT Florida residents to make an electronic will and have Florida law govern the disposition of their assets.  These issues are being addressed in the legislative process as this blog is being written.

ADVICE: Keep up with this legislation. Even if the legislation is not passed as provided in this current Act,  you can be sure that the electronic will will be a hot topic for future legislative sessions. As we all know, the electronic age is here to stay. Florida has to keep up, while protecting our citizens.

WORD OF THE WEEK:  Self Proof- If a will is “self proved” then, under Florida law, the will can be admitted to probate without further proof. The named personal representative does not have to locate the witnesses and obtain their testimony to “prove” up a will. Florida law has a specific statute which provides how a will becomes “self proved”. If you have an original self proved will, then no other documents are necessary to admit the will to probate. Do not confuse this admission to probate of  the will with the necessary documents to open a probate and appoint a personal representative. The self proof affidavit ONLY applies to the actual will.

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