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Farewell to Electronic Wills in Florida, For Now

On Monday, Governor Rick Scott vetoed a controversial bill that would create the “Florida Electronic Wills Act.”  If passed, this bill would have allowed wills to be signed, witnessed and notarized remotely through audiovisual technology and would have permitted electronic wills of residents and non-residents to be probated in the State of Florida.

What is an electronic will and how is it different?

Under current Florida law every will must physically be in writing, signed by the maker at the end of the will, in the presence of two witnesses who also must sign the will in the presence of the maker of the will and each other. When they die, the maker of the will must be a Florida resident in order to probate their will in Florida.

An electronic will is a will that is recorded electronically, signed electronically by the maker of the will in the presence of two witnesses, and signed electronically by the witnesses of the will in the presence of each other or the maker of the will.  Witnesses may be physically present or present through live video and audio which is recorded and attached to the electronic will document. While the witnesses and a notary must be present in Florida, the maker of the will does not. The will may be a valid Florida electronic will as long as the out of state maker of the will states that they intend to execute and understand that they are executing the document according to Florida law.

Why did the governor veto the bill?

There is little doubt that incorporating technological options into legal services makes estate planning accessible to a greater number of Floridians, but at what cost? With the State of Florida having the highest percentage of residents 65 or older, safeguards against fraud, forgery, and undue influence in the estate planning process are essential.

The governor found that the bill failed to provide the proper protections for vulnerable citizens.  Opponents of the bill argued that the electronic bill may cost less in the beginning, but the failure to prevent exploitation could result in substantial long term financial and emotional costs.

There are considerable benefits to meeting with an attorney in person. When an attorney meets with a client, they evaluate whether or not the client has the right frame of mind to clearly express their wishes. It also provides a safe space for clients to be honest about their wishes, outside the influence of others.  Even the presence of the most well intentioned family members can impact the ability to be honest.  Online will signing limits these protections because an attorney is not meeting with a client in person and has no ability to know who else is in the room. This creates the possibility for undue influence that can result in more litigation. By the time litigation begins, often the maker of the document either lacks the capacity to express their wishes or they are no longer alive.

The vetoed bill also failed to protect clients from fraud.  Notarizing a document in person ensures that the maker of the will and the witnesses are who they say they are.

Lastly, Governor Scott reported concerns that allowing nonresidents with no connection to Florida, other than a qualified custodian of their electronic will, to probate their estate in Florida would burden the Florida courts.  More probate cases in Florida means a longer probate process for Florida residents.

What does this mean for me?

Since Governor Scott did not sign the bill, the law stays the same.  Electronic wills are not valid in Florida.  But the bill is not gone for good, but rather delayed until next year when hopefully it will return with changes that address the concerns of the Governor and safeguards necessary to protect residents.

Please call the Law Office of Kathleen Flammia at 407-478-8700 or contact us now for more information.