Many of our clients often exclaim that executing their estate planning documents is like buying a house.
I agree – both processes require working through a sizeable stack of papers and signing your signature until your fingers cramp.
However, there is one glaring difference between the two events, and it’s not that our clients take home a shiny new Estate Planning binder rather than a set of keys.
The major difference is the fact that all of the paperwork required to purchase real property can be completed online.
Yep! The Florida Real Estate Commission is ahead of the game in the digital world.
Lawmakers attempted to pass a bill in 2017 to allow Wills and other Estate Planning documents to be signed electronically but it was ultimately vetoed by the Governor due to safety concerns.
As you can probably imagine, the main challenge is striking a balance between the wish to use technology to make Wills more accessible and the need to protect people who sign electronically.
Florida law makers are attempting to forge ahead again, and as of July 2019, the Electronic Wills Bills (aptly called the E-Will Bill) passed.
Florida is notorious for requiring strict compliance with the execution formalities of a valid Will. Some of the requirements date back almost two centuries.
The passage of the law to allow electronic Wills is the first time Florida has deviated even slightly from the doctrine of strict compliance.
The basic requirements for a Will in Florida are:
- the Will must be written;
- the testator/testatrix (the person making the Will) must be at least 18 years of age;
- the testator must have legal (mental) capacity and sign the Will (or have another person sign at her/his direction and in her/his presence if unable to do so); and
- the witnesses must be present when the testator signs and must also sign in the presence of the testator and each other.
- Bonus: the Will can be made “self-proving” in the presence of a Notary during the execution ceremony to make it easier for the Will to be admitted to probate after death.
Note: Holographic (or handwritten) Wills that are not witnessed are not recognized as valid in Florida even if valid when written in another state.
The failure to strictly comply with all of the above requirements can result in a Will being declared invalid which means – you guessed it – the Will is set aside and Florida law dictates the disposition of the deceased person’s assets and estate.
After the bill passed (HB 409), the statute was amended to expand the definition of “in the presence of” a notary to include the use of audio-video communication technology.
Like me, you may be wondering… but how will electronic Wills work in practice?
In general, it works like this – the testator creates a Will online and forwards it to an online notary who then has a video chat with the testator. The notary asks the testator the required questions, notarizes the documents and sends it back. The Will is then stored by an online custodian.
I see both positives and negatives associated with allowing electronic signatures.
The main advantage of electronic Wills is obvious – Wills would immediately become more accessible to the many people that are unable to leave their home which is a definite positive since EVERYONE NEEDS A WILL. (I’ll say it louder for the folks in the back.)
The main disadvantage is the fact that testators (especially more vulnerable folks) are even more susceptible to undue influence, duress, coercion, and abuse when signing documents virtually.
While there are safeguards for vulnerable adults, some suggest that the safeguards built into the new law are insufficient.
If a testator meets the definition of a “vulnerable adult,” any electronic signature is void as a matter of law.
A vulnerable adult is essentially any person who is 18 years of age or older whose ability to perform the normal activities of daily living OR ability to provide for his or her own care or protection are impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.
This lengthy definition will most definitely create challenges for ascertaining who can and cannot execute a valid electronic Will.
Especially so, since many people executing estate planning documents are elderly and likely suffer from some sort of infirmities of age.
Many probate litigators forecast heightened job security due to the tremendous amount of interpretation required by the new legislation. (Queue the laugh track.)
Although the new legislation went into effect on January 1, 2020, it will likely not become common practice for much longer than that.
The legislation requires that a “qualified custodian” store all electronic Wills and provides strict regulations that must be followed to hedge against tampering.
Experts on the topic suggest that meeting the legislation’s specialized storage requirement will be a challenge for most law firms to meet.
That said, our office is researching the details on effectively and securely implementing the legislation to offer cost-effective electronic signings to our clients. We will keep you posted with future updates.
So, for now, when you sign Estate Planning documents with the attorneys at My Pink Lawyer®, you will do so in our office in the presence of two witnesses and a notary. Or, if you live a distance away from our office, we will provide you with the documents and detailed signing instructions to ensure that you comply with the execution requirements of Florida law.
To further protect the integrity of your estate planning decisions, we also perform our “Will Signing Ceremony” where we ask a series of questions to establish capacity and intent; before the notary places you, the “testator,” under oath and asks you and the witnesses a few more questions to establish conformity with Florida law.
Until electronic signatures gains more widespread acceptance in the Estate Planning world and the kinks get ironed out, or until our office otherwise feels confident launching an electronic signature option, we will be sticking to the tried-and-true, face-to-face personalized service that our clients have come to expect.
Amanda “The Times They Are A Changin’’” Lynch Elliott
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