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Is an Electronic Will Legal in Florida?

On Behalf of | Dec 30, 2019 | Firm News

Until recently, electronic wills weren’t legal in Florida. Back in 2017, there was a unanimous vote in the Florida Senate to make electronic wills legal. However, the former governor vetoed the bill, so there were no changes made to probate law. Electronic wills weren’t quite dead in the water, however. Just days before the end of 2019’s legislative season, the Florida Senate voted unanimously to legalize electronic wills. Finally, the governor signed the bill into law. This is a major change to Florida’s probate legislation.

The Traditional Approach

Traditionally, Florida’s law required strict compliance with every execution formality. These formalities date back virtually 200 years to the United Kingdom’s Wills Act of 1837. Even a small and inconsequential issue could get the will passed over in court. Therefore, electronic wills represent a huge change. It’s the first time that Florida’s probate law has varied even a little from this traditional compliance approach.

Could Electronic Wills Become A Trap for Vulnerable People?

Concerns surrounding this element of electronic wills led the state legislature to build protective features into the law. An electronic will can only have a remote witness if an online notary public supervises the individual. The testator must provide verbal answers to several questions, and his or her responses must satisfy the notary public. The questions include:

  • Are you aged 18 or older?
  • Are you voluntarily signing the will?
  • Are you of sound mind?
  • Have you taken any alcohol or drugs that could impair your ability to make a decision?
  • Were you influenced or forced to include anything in the will that you didn’t want to include?
  • Has anyone helped you to access the video conference? If the answer is yes, then who?
  • Where are you? Can you name everybody in the same room as you that you know?

This should eliminate the possibility of anyone exploiting a vulnerable person.

Will Everyone Rush to Make an Electronic Will?

This new legislation will take effect on Jan. 1, 2020. However, electronic wills aren’t likely to become the go-to option any time soon. This is because the kind of legislation surrounding electronic wills that Florida adopted has certain complex requirements. Firstly, there is a substantial capital investment required. Secondly, a specialized infrastructure for data storage will also be necessary. Both of these issues will raise problems for law firms in the state. Therefore, it is likely to take some time for electronic wills to gain acceptance in the mainstream.

The Qualified Custodian Issue

The new legislation will mandate that a qualified custodian must store electronic wills properly. Strict regulations and rules will apply, and the custodian must meet certain requirements. These include:

  • He or she must be a Florida resident and live in the state. He or she must also be organized or incorporated in Florida.
  • He or she must consistently employ a system to maintain custody of electronic records, including electronic wills.
  • He or she must furnish any requested information to a court hearing regarding his or her procedures and policies.

Qualified custodians must also maintain audio-video recordings of the online notarization of electronic wills. They also retain liability for any destruction or negligent loss of these electronic records. The bill prohibits qualified custodians from terminating or suspending the testator’s access to his or her electronic records. It also requires the custodian to maintain confidentiality regarding the testator’s information. For all these reasons, the chances of electronic wills becoming widespread are slim.

Making A Traditional Will in Florida

The best option for ensuring your estate passes to your chosen beneficiaries is to make a traditional will. Contact our professional team to find out more about how we can help you with your estate planning needs.