Electronic Wills in Florida are Coming, But are They a Good Idea?
Effective, January 1, 2020, adult Florida residents will legally be allowed to execute an electronic last will and testament (a “Will”) to dispose of their property when they die. A previous attempt to pass such laws failed in 2017 due to a veto by then governor, Rick Scott. However, a revised and improved version of the bill passed this summer as was signed into law by now governor, Rick DeSantis. The new law will allow the signing of Wills (and some other specific types of estate planning documents) to be completed 100% electronically online. To do so shall require the utilization of remote notarization and witnesses to appear via certain approved secure video chat services. Notaries will also be required to undergo new specific training in order to be able to conduct executions of electronic Wills. Additionally, certain qualified and state-approved custodians will oversee safeguarding the completed electronic Wills for safekeeping until the creator of the Will dies, at which time the electronic Wills may be electronically filed with the appropriate probate court.
Florida is only the 4th state to implement laws related to the execution and storage requirements for electronic Wills. One concern is whether other states will honor a properly executed Florida electronic Will or not. If other states will not honor a Florida electronic Will, then a deceased person’s asset subject to probate administration in other states may not go to the intended beneficiaries. Traditional written Will executions usually occur in a lawyer’s office with proper procedures and safeguards put in place by a qualified lawyer in this area of law. However, many of those procedures and safeguards will not be in place during electronic executions of Wills which should make electronic Wills a ripe target for attacks to their validity under theories such as lack of capacity and/or undue influence. Additional safeguards were added to the 2019 version of the law to protect vulnerable adults in Florida; however, until the laws are created and have held up to challenges in probate contests, there is not going to be much clarity to attorneys who practice in this area of the law. A final concern is that the ability to execute documents electronically may also open the door for “bad actors” to take advantage more easily of seniors by attempting to coerce them into signing electronic Wills.
The goal of the new law is to promote easier access to people that otherwise may not partake in legal services such as estate planning. As an estate planning attorney, I agree that electronic estate planning is the future and want to provide easier access for all Florida residents to legal services. However, I also believe that new laws on electronic Wills are going to initially bring with them more questions than answers in 2020 (and the following years). Therefore, I will not be implementing electronic Wills into my legal practice immediately but instead, will take a “wait and see” approach over the next few years. Basically, I do not want my clients to be the guinea pigs for these new laws in case there are unexpected consequences that might negatively impact my clients’ estate planning goals.
Kevin Albaum is a shareholder in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to firstname.lastname@example.org.