What does this mean?
In order to be a valid Last Will and Testament or revocable living trust in Florida, the law requires the person to be over 18 and competent, and sign at the end of the document in the “presence” of 2 witnesses.
So what does it mean that a person can create an “electronic will?
An electronic will is a document that is stored electronically with a “custodian”. Not everyone can be a “custodian of wills. Florida law has set forth strict guidelines for becoming a “custodian” under Florida law. Only companies who have met those criteria can provide the service of assisting a person with the execution formalities of a will that complies with Florida law. In addition, there are additional requirements related to the actual “electronic signing” of the will. Do not expect too many elder law attorneys endorsing and advocating the use of “electronic wills”.
My philosophy and firm mission statement is to help seniors remain independent as long as possible, maintain control of their own financial and health care affairs even if incapacitated, Protect their assets from predators, and preserve a legacy for their family. As an attorney committed to helping my clients avoid attorneys, the concept of electronic wills has many drawbacks and pitfalls. I am of the opinion that the law opens the flood gates for litigators. The litigation will focus on the signing ceremony.
The law set forth requirements that the signing of the will be electronically recorded on web-based video chat software such as Skype. In addition the signor can be in one location, the notary in another, and the witnesses in a 3rd location. That said the signor has to have access to a computer to video chat with the notary and witnesses. I have never endorsed the use of videotaping or audio-taping the execution of a will. Too much can be misinterpreted or used to establish a case for undue influence or lack of capacity.
I believe the laws requirements for the signing of a will is somewhat prejudicial to our aging population for several reasons:
- The law requires access to a computer and Skype.
- The law requires the notary to verify the person’s identity. This is done by an electronic web-based service that asks 5 multiple choice questions about the signors affairs (i.e. Which of the addresses listed have you lived at in the last 10 years? Which company is your mortgage with?) 4 choices will be listed. The signor must select the right answer. There signor must get 80% of the questions asked right. 2 minutes are given to answer each questions. 80% of the questions must be answered correct. The “quiz” can be taken twice. I myself have had to go through this verification process. I considered it intrusive.
- It does not stop there. The notary must establish via the video chat that you are “competent”.
- Next, for vulnerable adults, the inquisition continues! The signor is asked several questions I believe many seniors would answer in the affirmative that may or may not deem a person incapable of signing a will via electronic means. Questions include asking if the person is on any drugs that impair their mental capabilities; whether the person has any “physical” or mental disabilities that impair the performance of activities of daily living. Activities include bathing, transferring, showering, and toileting. I am not sure what any of those have to do with the ability to sign a will. I have no idea what one’s physical capabilities have to do with signing a will either. It is possible for a person to be taking a prescription drug for Alzheimer’s, yet still possess the legal capacity necessary to draft a will and execute it.
- If the signor is a “vulnerable adult” as defined in Florida Statute 415.102(28). If the signor is a vulnerable adult” as defined by Florida law, the witnesses must in the physical presence of the signor.
So welcome to the electronic age where this new laws have reminded me of how easy it is for third-parties to know so much about our affairs.
The Florida Statute for electronic wills takes effect July 1, 2020. It can be found at Florida Statute 732.522
The law requires that electronic wills be stored by a “qualified custodian.”
A qualified custodian of an electronic will must meet the following requirements:
- Must be domiciled in and a resident of Florida or incorporated or organized in Florida;
- Must consistently employ a system for maintaining custody of electronic records and store electronic records containing electronic wills under the system; and
- Must furnish for any court hearing involving an electronic will that is currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualified custodian’s policies and procedures.
A qualified custodian must maintain an audio-video recording of an electronic will online notarization. A qualified custodian is liable for the negligent loss or destruction of an electronic record and may not limit liability for doing so. The law also prohibits a qualified custodian from suspending or terminating a testator’s access to electronic records. The law requires a qualified custodian to keep a testator’s information confidential.