Wednesday, May 17, 2017
The Florida legislature recently passed a bill through both houses authorizing electronic wills and electronic will execution. The purpose of the legislation is to aid in reducing fraud and misdeeds associated with paper wills. Paper wills will not be affected by the legislation, but they may be revoked by an electronic will.
A few key provisions, if the electronic will is signed by the testator electronically, then the witnesses must sign electronically as well; two witnesses are still required and they must be in the testator’s presence. The digital signature does not require a third party intermediary for the testator to establish an online identity. If the will contains a self-proving affidavit, both the will and the affidavit must be stored with an authorized custodian. There are a number of restrictions on who may be a custodian and their subsequent liability; persons drafting electronic wills should include the name of the custodian in the will.
This new bill will likely aid Internet-based will preparation companies. It is also reasonable to expect some attorneys to use electronic means to draft a will when it is not feasible for the client to come to the attorney’s office. While these attorneys may opt to create in-house custodians, the regulatory restrictions and liability may encourage more third-party firms to handle the digital storage. The larger question is whether this legislation will push more attorneys to utilize their option at drafting electronic wills, or if the status quo will remain unchanged.
See Charles Rubin, Florida Wills Go Electronic, Rubin on Tax, May 13, 2017.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.