In 2017, the Florida Legislature passed the Florida Electronic Wills Act, which authorizes electronic wills,electronic will execution, and the probate of electronic wills of both resident and non-residents in the State of Florida, [House Bill 277]. Recently, Governor Rick Scott vetoed the bill.
Currently, the required formalities to execute a valid Last Will and Testament are that:
- It must be in writing;
- It must be signed at the end by the testator; and
- The signing must be in the presence of two witnesses.
Additionally, a Will must be “self-proven” to be admitted to Florida probate court, which means that the testator and witnesses’ signatures must be notarized. A Will that is not self-proven is still valid in Florida, but additional steps must be taken for the Will to be admitted to court. To alleviate the current necessities of a “pen and ink” signature, and all parties being present to execute, witness, and notarize a Will, the Electronic Will Act provides that a person may create a Will electronically, sign it electronically, and it may be witnessed electronically as well.
The proponents of the Florida Electronic Wills Act argue that people procrastinate in signing their Wills due to the difficulty in obtaining the required number of witnesses and a notary public. Additionally, most contracts may now be signed electronically, and finally, if creating and executing a Will became more accessible and less expensive, more people would have the opportunity to execute a Will.
The Governor, however, vetoed the bill for several reasons. First, the Governor points out the he oversees the appointment of notaries in the state and therefore, is charged with ensuring notaries guard the most vulnerable citizens against fraud and exploitation. He states that the notary provisions in the bill “do not adequately ensure authentication of the parties to the transaction”. Further, he suggests concerns regarding probate. Currently, venue is proper in Florida if a decedent is a Florida resident, or if a decedent owns real property in Florida. The proposed bill allows an electronic will to be probated in Florida merely if it is created and stored in Florida. Finally, “delayed implementation of remote witnessing, remote notarization, and nonresident venue provisions” are also concerns. For the foregoing reasons, the Governor vetoed the bill. To read the Governor’s veto letter in its entirety, click here.
Obviously, the Electronic Wills Act is a concern among estate planning lawyers. Anyone can type their wishes, sign a piece of paper, and determine whether it must be witnessed and notarized. Most people do not realize that executing a Will does not avoid probate. A lawyer is not retained only to type up a document and notarize it. The concern is not losing business; it is that consumers of electronic wills may sign a document that is not in their best interest. An estate-planning lawyer provides counsel and advice regarding probate avoidance, whether a trust is appropriate, different options for asset distribution, and who may best serve in fiduciary roles. Additionally, a lawyer can explain the nuances of Florida law, for example, the specific nature of homestead property, rights of a surviving spouse, and how to make a distribution to a special needs beneficiary or a Medicaid recipient. The consequences of executing a Will without this information may be quite severe.
People work their whole lives to provide for the next generation or to make a charitable contribution, explain their end of life wishes, and leave a legacy. Often, during consultations, clients will say, “I never thought of that”, or “I didn’t realize that”, or “Can we have some time to think about this further?” Consulting is an invaluable part of the process and should not be rushed. Additionally, the estate-planning lawyer will often also probate the Will of his or her clients, if a probate is necessary. A continuing relationship between the lawyer and the client’s children is comforting to many families. Finally, electronic will creation and execution opens the door to fraudulent documents and fraudulent signatures, which may be more difficult to prove and ultimately, more costly and time consuming for the family.
It is undeniable that legal work will continue to move to the online arena, but it is necessary that all of the details are resolved before something as important as the Electronic Will Act becomes law.
Elaine N. McGinnis is an established Estate Planning attorney with nearly fifteen years of experience handling Estate Planning, Probate, Trust Administration and Elder Law cases. Elaine’s clients depend on her to understand their individual needs, discuss goals, and prepare the documents appropriate for each case. Call today to schedule a consultation at (813) 676-9082 or via email to marketing@whhlaw.com.
