In June, the Governor of Florida signed Florida House Bill 409 into legislation. This bill authorizes the use of electronic wills and will take effect January 1, 2020. An electronic will is a will that is executed online via remote notaries and video technology. This would allow notaries to sign and seal a will without actually being physically present and the same goes for any witnesses that may need to sign. With the world constantly evolving in technology, this is not all too surprising. However, for those of us that work in the area of estate planning and probate, we can see the consequences that may arise out of the execution of an electronic will.
Problems with buying a will online
Prior to conducting any research on the use of electronic wills, there are a few things that come to mind. In the area of probate and estate planning, LegalZoom would be the best example of a system designed to generate a will for a low price. We begin to think, “How can we make sure these electronic wills abide by Chapter 732 of the Florida Statutes?” This statute sets out the requirements for a properly drafted and executed will. A person that does not work in this field, may not know that there are very specific requirements for a will to be considered properly executed. One of the most common mistakes I have witnessed working in this particular area of law is when there is a will and it looks like it meets all the requirements. Then we get to the last page and there is no self-proving affidavit. For a will to be properly executed in conformity with Chapter 732.502 of the Florida Statutes it must have a self-proving affidavit. Although it is possible to probate a will that is not self-proving, it requires tracking the witnesses down and getting them to sign affidavits which can take a lot of time and money, especially if they are difficult to locate or deceased.
Can an electronic will be self-proving?
All this talk about self-proving wills, but can electronic wills also be self-proved? The answer to this is absolutely. In fact, there is an entire section dedicated to the self-proof of electronic wills in the Florida Statutes. Chapter 732.523 of the Florida Statutes lays out the four requirements to consider an electronic will self-proving. The big requirement is that it must include the same self-proving language as a regular paper will, whether it is within the language of the electronic will or attached to the will. Now, here is the confusing bit. An electronic will has to designate a qualified custodian. This qualified custodian must keep a record of the electronic will until the testator passes away and the will becomes subject to probate. The qualified custodian also has to swear the will conforms with the statutes and it has not been altered since the day of execution. By appointing a qualified custodian, this allows for increased regulation of electronic wills. Many people draft their own LegalZoom will because of how convenient it is. You sit down, type it up, and it is sent to your printer within a few minutes. With the passing of electronic wills, it allows for the same convenience of a DIY will, but ensuring it conforms with all of Florida’s laws.
Are people going to use electronic wills, and what if a qualified custodian doesn’t deliver?
Of course, there is the issue of whether the qualified custodian will do their job and make sure everything is done properly, but the same risk exists even in drafting a will at an attorney’s office. When January rolls around, it will be interesting to see how other law firms react to the use of electronic wills and whether we will actually see increases in the rate of people that wish to execute an electronic will over a paper will. If you are interested in learning more about wills and why it is important to have one, check out this blog post. If you would like to set up a consultation to draft or revise a current will, contact us to set up a free consultation.
Remember, this blog post is just for information purposes.
Written by Emina Memic, and edited by Patrick Quarles, Esq. and John Richer Esq.