After several years of deliberation and with the participation and input of the Elder Law Section, the Florida Legislature passed House Bill 409, which authorizes electronic legal documents, including the creation and execution of electronic wills. The bill signed into law on June 7, 2019, by Governor DeSantis, will be effective on January 1, 2020.
What are electronic wills?
Under the new law, an electronic will is an instrument, including a codicil, executed with an electronic signature by a person, which disposes of the person’s property on or after his or her death and includes an instrument that merely appoints a personal representative or guardian or revokes or revises another will. Electronic signature is defined as “an electronic mark visibly manifested in a record as a signature and executed or adopted by a person with the intent to sign the record.”
How is an electronic will signed?
Like traditional wills, an electronic will must bear the signature of the testator. An electronic signature, defined above, satisfies this requirement. As for the requirement that individual sign the electronic will in the presence of one another, this requirement may be satisfied by the witnesses being present and electronically signing by means of audio-video communication technology; however:
(a)The individuals must be supervised by a notary public;
(b) The individuals must be authenticated and signing as part of an online notarization session;
(c) The witness must hear the signer make a statement acknowledging that the signer has signed the electronic record; and
(d) The signing and witnessing of the will complies with the requirement of Florida law, which elaborates in detail the process of supervision by a notary public of the witnessing and signing of an electronic will.
According to Florida law, the act of witnessing an electronic signature through the witness’s presence by audio-video communication is valid only if, during the audio-video communication, the principal provides verbal answers to all of the following questions, each of which must be asked by the online notary public in substantially the following form: (1) Are you currently married? (2) Please state the names of anyone who assisted you in accessing this video conference today (3) Please state the names of anyone who assisted you in preparing the documents you are signing today (4) Where are you currently located? (5) Who is in the room with you?
Self-proving electronic wills
Just as for traditional wills, electronic wills may be self-proved. An electronic will is self-proved if: 1) The acknowledgment of the electronic will by the testator and the affidavits of the witnesses are made in the same manner as self-proving a traditional will in accordance with Florida law and are part of the electronic record containing the electronic will; or are attached to, or are logically associated with, the electronic will; (2) The electronic will designates a qualified custodian; (3) The electronic record that contains the electronic will is held in the custody of a qualified custodian at all times before being offered to the court for probate; and (4) The qualified custodian who has custody of the electronic will at the time of the testator’s death certifies under oath that, to the best knowledge of the qualified custodian, the electronic record that contains the electronic will was at all times before being offered to the court in the custody of a qualified custodian and that the electronic will has not been altered in any way since the date of its execution.
Probating electronic wills
An electronic will that is filed electronically with the clerk of the court through the Florida Courts E-Filing Portal is deemed to have been deposited with the clerk as an original of the electronic will. A paper copy of an electronic will which is certified by a notary public to be a true and correct copy of the electronic will may be offered for and admitted to probate and shall constitute an original of the electronic will.
Horacio Sosa has extensive knowledge on this topic and published an article on electronic wills in The Elder Law Advocate Fall 2019 issue.