Electronic Wills

Electronic wills were authorized when the Florida Senate voted unanimously on HB 409, and the bill was subsequently signed into law.  This new legislation can be found in Fla. Stat. 732.521 through 732.525.

This is a big change in Florida law, because in addition to having the requisite testamentary capacity, Florida traditionally required strict compliance with the will execution rules, particularly Fla. Stat. 732.502:

Execution of wills.—Every will must be in writing and executed as follows:

1. (a) Testator’s signature.—
   1. The testator must sign the will at the end; or
   2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.
2. (b) Witnesses.—The testator’s:
   1. Signing, or
   2. Acknowledgment:
      • a. That he or she has previously signed the will, or
      • b. That another person has subscribed the testator’s name to it, must be in the presence of at least two attesting witnesses.
3. (c) Witnesses’ signatures.—The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

Electronic wills are created, signed, witnessed, and stored entirely in an electronic format. While an electronic will can be electronically signed by a testator and witnesses located in the same room, the new law authorizes and contemplates the execution of the electronic will via recorded video conference, such as those like FaceTime or Zoom. The testator and witnesses use their electronic signatures, signing the electronic will in remote, separate locations from each other. When signing, the testator and witnesses each are to make verbal statements in the video conference, which indicate that they have signed the electronic will. See Fla. Stat. 732.521.

Notaries in Florida almost always participate in the classic or traditional will execution process, by confirming the identity of those signing.  Having the notary participate and sign makes a traditional will “self-proving.”  However, for an electronic will, a certified online notary must supervise the electronic signing process, confirm the identities of the testator and witnesses, and have the testator answer some screening questions to assure their understanding. This will assure that the testator is not a “vulnerable adult” (see below), and therefore ineligible to sign an electronic will without being in the physical presence of the attesting witnesses.  In addition, the notary will ask questions of the testator in an effort to assure there is no coercion or undue influence relative to the will.  The notary will require some type of government-issued identification too.

Except for vulnerable adults, any competent adult in Florida may now create an electronic will – unless the adult is considered a “vulnerable adult”.  In that situation, the witnesses must be in the actual physical presence of the testator. If they are not physically present with one another, then the witnessing of the will is invalid.  In other words, Florida prohibits the use of remote electronic signing of an electronic will by a testator if deemed a “vulnerable adult.” This is a heightened or elevated standard. A vulnerable adult is defined as:

a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

Fla. Stat. 732.521.

There are also differences involved with the safekeeping of these wills.  While Florida law does not require a traditional will to be stored in a particular way, many lawyers and law firm store wills in fireproof safes located in their offices, or recommend that their clients store their original wills in a secure location.   Electronic wills, under the new statute, provide for electronic wills to be valid if only stored electronically by a “qualified custodian,” which is construed as an individual in Florida, or a Florida business, having specialized data storage and security.  See Fla. Stat. 732.524, which provides in relevant part:

732.524 Qualified custodians.—

1. To serve as a qualified custodian of an electronic will, a person must be:
   • (a) Domiciled in and a resident of this state; or
   • (b) Incorporated, organized, or have its principal place of business in this state.
2. A qualified custodian shall:
   • (a) In the course of maintaining custody of electronic wills, regularly employ a secure system and store in such secure system electronic records containing:
     1. Electronic wills;
     2. Records attached to or logically associated with electronic wills; and
     3. Acknowledgments of the electronic wills by testators, affidavits of the witnesses, and the records described in s. 117.245(1) and (2) which pertain to the online notarization.
   • (b) 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 qualifications, policies, and practices related to the creation, sending, communication, receipt, maintenance, storage, and production of electronic wills.
   • (c) Provide access to or information concerning the electronic will, or the electronic record containing the electronic will, only:
     1. To the testator;
     2. To persons authorized by the testator in the electronic will or in written instructions signed by the testator with the formalities required for the execution of a will in this state;
     3. After the death of the testator, to the testator’s nominated personal representative; or
     4. At any time, as directed by a court of competent jurisdiction.

While the ease of remote signing and notarization of electronic wills may make it easier for those who want to have a will to create and execute one, the Florida Bar’s Real Property, Probate & Trust Law Section had actually opposed the new legislation.  It was the Section’s position that, among other reasons, electronic wills could invite fraud.  Additionally, the ambiguity or vagueness of the real meaning of “vulnerable adult” may limit the use of electronic wills, because remotely-signed electronic wills are invalid if a testator is later deemed a “vulnerable adult” (despite having testamentary capacity at the time of execution). Furthermore, the qualifications for custodians of electronic wills do set forth protections but may also be a limitation. 

Perhaps some of these questions or qualifications can be addressed in later revisions or amendments to these statutes.  In the meantime, it is most certainly best to speak with your Florida probate lawyer on the signing of your will, to assure its proper execution and therefore validity, in order to assure your wishes are carried through as set out in the will.