Electronic wills will soon be taking Florida by storm. As Bob Dylan once sang, “the times they are a-changin'”. Florida House Bill 409 was passed was approved by Governor Desantis on June 7, 2019. As an attorney practicing probate in the State of Florida, I really wish the effective date of the electronic will statute would have come sooner to allow for social distancing due to Coronavirus. Those of us wishing to avoid all human contact due to Coronavirus will have to wait until July 1, 2020, which is when the Electronic Will law becomes effective. Apparently, the second time is a charm when it comes to electronic wills because the government did not pass the law in its first attempt. The first time around the Florida Legislature’s House Bill 277, passed the House by a margin of 73 to 44 and passed the Senate unanimously, but was vetoed by the governor in June of 2017.
Practically speaking, the introduction of electronic wills statute in Florida would not have been possible without the authorization of remote online notarization, which was also recently introduced under Florida. Without some ability to notarize and witness a will remotely, it follows that doing electronic wills would have been impossible without a complete over hall of the will statute.
Never the less an electronic will law was passed and Florida Statutes 732.522 provides statutory authority for the execution and filing of an electronic will. The text of F.S. 732.522 is relatively short, but it is dense:
732.522 Method and place of execution.—For purposes of the execution or filing of an electronic will, the acknowledgment of an electronic will by the testator and the affidavits of witnesses under s. 732.503, or any other instrument under the Florida Probate Code:
(1) Any requirement that an instrument be signed may be satisfied by an electronic signature.
(2) Any requirement that individuals sign an instrument in the presence of one another may be satisfied by witnesses being present and electronically signing by means of audio-video communication technology that meets the requirements of part II of chapter 117 and any rules adopted thereunder, if:
(a) The individuals are supervised by a notary public in accordance with s. 117.285;
(b) The individuals are authenticated and signing as part of an online notarization session in accordance with s. 117.265;
(c) The witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and
(d) The signing and witnessing of the instrument complies with the requirements of s. 117.285.
(3) Except as otherwise provided in this part, all questions as to the force, effect, validity, and interpretation of an electronic will which comply with this section must be determined in the same manner as in the case of a will executed in accordance with s. 732.502.
(4) An instrument that is signed electronically is deemed to be executed in this state if the instrument states that the person creating the instrument intends to execute and understands that he or she is executing the instrument in, and pursuant to the laws of, this state.
History.—s. 33, ch. 2019-71.
[Note.—Effective July 1, 2020]
If you don’t immediately recognize F.S. 732.503, the law is merely citing to the statute governing self-proof of wills. Therefore, if you read the statute in its entirety, you must both comply with the electronic will self proof statute (discussed below) and the general statute allowing for self-proof of wills. I think the legislature could have been more clear on this point though.
Next, the meat and potatoes of the statute, which in part states the following:
– A electronic signature of a will is as good as an in person signature.
-An in person signature of an electronic will becomes unnecessary if the other elements of the statute are met.
-The electronic will must otherwise comply with the normal requirements of an execution of a Will as outlined in F.S. 732.502
-Further, the electronic Will must include a statement that says that the person executing the will states that they intend to execute the will and understand that the executing the will pursuant to the laws of the State of Florida.
It is important to recognize that a will executed in compliance with F.S. 732.522 will be valid, but it still needs self proof to avoid unnecessary time and expense in probate. Self-proving a will is typically where two witnesses sign under penalty of perjury that they observed the execution of the will. Self-proof allows for the acceptance of a will without a hearing (or the taking of evidence) in probate court, unless the will is objected to.
There is a separate section of Florida Statutes that allows for the self-proof of an electronic Will. Specifically, F.S. 732.523 authorizes the self-proof of an electronic Will. F.S. 732.523 provides:
732.523 Self-proof of electronic will.—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 accordance with s. 732.503 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 in compliance with s. 732.524 and that the electronic will has not been altered in any way since the date of its execution.
Therefore, in order for an electronic will to be self-proved, it must:
(1) Be executed in compliance with the sell proof of will statute, 732.503;
(2) Designated a qualified custodian;
(3) The qualified custodian must be held by the qualified custodian from the date it is created until the date it is offered to the court for probate; and
(4) The qualified custodian of the electronic will must certify that the electronic record contains the electronic will, has not been altered in any way, and is in compliance with FS. 732.524 (the statute on qualified custodians of electronic wills).
I would caution those who want to execute an electronic will that the statute is young and has not yet had the benefit of litigation to clarify ambiguities. Statutory interpretation normally requires strict adherence to the statute. What that means in plain English is that it is probably a more conservative route to wait to execute an electronic will until such time as practitioners have a better feel on how the statute will be interpreted. Undoubtedly, somebody will execute an electronic will and that document will not comply with the above-mentioned statutes. This failure will likely mean that the Court will ignore the failed electronic will and instead rely upon either the intestate statute or another will to determine the intent of the deceased.
The traditional will statute has had the benefit of about 50 years of revisions and case law. It is much more of a known quantity in the legal field. That is why I would not recommend the execution of an electronic will to clients unless it is absolutely necessary to perform the services remotely.
If you are interested in having an attorney draft a will on your behalf, please do not hesitate to contact my office.