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The Bar Bulletin
Jax Daily Record Thursday, Dec. 5, 201905:30 AM EST

Commentary: A historic change in estate planning

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With its new paperless will, Florida is a trailblazer — and a guinea pig.
Rose Marie Preddy

By Rose Marie Preddy • JBA Estate Planning, Probate and Tax Committee chair

Want to sign a will? Reaching for paper and a pen? No need in Florida.

As of Jan. 1, Florida’s Electronic Documents Act takes effect and it will change the way we execute and preserve estate planning documents.

No more paper. No more pens. No more requirement that testator, witnesses and notary be together in the same room, or even the same state.

The testator will be allowed to electronically sign wills, trusts and advanced directives remotely while the witnesses and notary appear via videoconferencing technology, such as FaceTime or Skype.

This new law will not replace the traditional pen-to-paper method of executing a will but provides another option. 

This law was not easy to pass because unlike other legal documents, the testator will not be alive when the will goes into effect. As such, rigid processes must be in place to ensure the testator is a competent, nonvulnerable adult at the time of execution.

The notary must be trained to facilitate the execution of an electronic will. They must determine if the testator is a “vulnerable adult” under Florida Statute Section 415.102(28) if the testator wants to sign the document without witnesses in the room.

The notary must ask the testator the following questions as provided in the statutes: 

• Are you under the influence of any drug or alcohol today that impairs your ability to make decisions?

• Do you have any physical or mental condition or long-term disability that impairs your ability to perform the normal activities of daily living?

• Do you require assistance with daily care?

Based on the questions and Florida Statute Section 415.102(28), “vulnerable adult” is broadly defined. If the testator answers yes to any of the questions, the notary cannot proceed. They will be considered a “vulnerable adult” and as such, the witnesses must be physically present with the testator at the time of execution. 

If the testator is not a “vulnerable adult” and the witnesses want to appear remotely, the notary will need to ask additional questions of the testator as listed in the statute:

• Are you currently married? If so, name your spouse.

• State the names of anyone who assisted you in accessing this video conference today.

• State the names of anyone who assisted you in preparing the documents you are signing today.

• Where are you currently located?

• Who is in the room with you?

If the notary is satisfied with the answers, the testator can electronically sign the document with witnesses and a notary remotely appearing via video conference technology.

The notary must maintain an electronic journal of what, when and for whom the online notarizations were done that is to be kept for 10 years.

A “qualified custodian” in Florida holds the video and electronic documents. Uniform standards will be adopted for tamper-evident technologies that will prevent and/or reveal any alteration or changes to the document after execution. 

A qualified custodian is liable for the negligent loss or destruction of an electronic record and cannot limit liability for doing so. They must maintain insurance in case of errors or omissions.  

Once the testator dies, the custodian e-files the will. If the testator dies as a resident of another state, it is unknown if the other state will admit the electronic will to probate.

The statutory updates to electronic documents also extend to other estate planning documents. For example, a durable power of attorney cannot include special transactions provisions or “super powers.”  

Electronic will signing is now law or on the way to becoming law in six other states, but the laws still are untested to provide any guidance on whether they are workable. As such, Florida will be both a trailblazer and a guinea pig for the rest of the country.  

Rose Marie Preddy is owner of the Preddy Law Firm P.A., practicing estates, trusts, probate, guardianship and business succession planning.

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