Monday, July 10, 2017

Florida Governor Vetoes Electronic Wills Act

Apparently Governor Rick Scott has heard the concerns of estate planning attorneys like myself and has vetoed the Florida Electronic Wills Act.  

According to an article by Craig Hersch on WealthManagement.com, the Governor stated that the bill "failed to strike the proper balance between the competing concerns of providing safeguards to protect the will-making process from exploitation and fraud while making wills more financially accessible to citizens through technological innovation."

He did encourage the legislature to continue working on the bill, so we may still see a version of this in the future.

Wednesday, June 28, 2017

Electronic Wills Are Coming To Florida

The preparation and execution of a Will has always been full of tradition and formality.  The requirement that a Will be on paper, in writing, and signed in the presence of witnesses, has existed for hundreds of years. However, Florida appears set to go against the historical norm become the second state to authorize the use of electronic Wills. The Florida Electronic Wills Act (“Act”) will amend the Florida Probate Code and specify the requirements for creating a valid electronic Will that has an electronic signature and is recorded through electronic means.  Assuming that Governor Scott signs the Act, which he is likely to sign, it will become effective April 1, 2018.
 
Historically, the formalities of a Will signing were designed to ensure that the person making the Will had adequate mental capacity, that he or she was in fact who they purported to be, and that there was no undue influence or fraud when the document was signed.

The Act still requires the writing, signing, and witnessing of a Will.  However, the Act permits a Will to exist and be preserved as an electronic record rather than on paper. An electronic signature takes the place of a pen to paper signature. If the electronic Will contains a self-proving affidavit, the affidavit must also be stored electronically with a qualified custodian.  (As a reminder, if any Will (electronic or traditional) is not self-proved, it can be admitted to probate upon the testimony of the two witnesses, but you are far better off when the testator and the witnesses sign a self proving affidavit to avoid having to track witnesses that you may not even know many years after the document is signed.)

Perhaps the most drastic change made by the Act is that witnesses may now appear over video to satisfy the physical presence of witnesses’ requirement. However, the witnesses do not have to be in the same physical location as the testator. Individuals are permitted to be in different physical locations if they can communicate with each other by means of live video conference and meet various other requirements, including the presence and attestation of a licensed Florida attorney or a notary public, a time-stamped recording of the entire video conference, and the verbal answering of six questions by the testator.

The presence of witnesses is crucial part of a Will execution because a testator’s wishes are not enforceable until after death when the testator is unavailable to speak to their intentions or the authenticity of the document. Without the physical presence of these individuals, this safeguard is no longer in place. The Act does require that an attorney or notary be one of the people on the conference, but there is no requirement that the notary or attorney be in the same room as the testator.

In an effort to protect vulnerable adults, the act prohibits individuals in end-stage condition from executing an electronic Will.  The Act also includes a subsection that requires a testator to provide verbal answers to the following questions while on video: Are you over the age of 18? Are you under the influence of any drugs or alcohol that impairs your ability to make decisions? Are you of sound mind? Did anyone assist you in accessing this video conference? If so, who? Has anyone forced or influenced you to include anything in this document which you do not wish to include? Are you signing this document voluntarily?   However, there is no one to protect the testator from any off-camera wrongdoing.

Not surprisingly, this technological change to the legal world was not pushed through the Senate by attorneys. It is my understanding that the proponents of the Florida Electronic Wills Act are proprietors of willing dot com, a web-based company that provides estate planning software to users to create their own legal documents.

One of the new requirements under the Act is the need to have a "qualified custodian" to store the documents.  Not surprisingly, companies that prepare online Will are also likely to store the documents following their creation and therefore has the ability to perform as a qualified custodian for a testator.

The qualified custodian must be domiciled in and a resident of Florida or be incorporated or organized in Florida.  The qualified custodian must also obtain a surety bond  and maintain liability insurance  to secure the faithful performance of their obligations under the Act, including the responsibility to protect the electronic record from destruction or unauthorized access.  They must also meet numerous requirements as to maintaining and releasing electronic records.

The Act does not give specifics on how the qualified custodian is to store the electronic record for safekeeping. It is unknown what storage systems are adequate and there is no standard in place that regulates a storage system or the security other than a general statement that requires only the testator have access. If stored improperly, electronic wills could be susceptible to hackers and other unauthorized access.

Although it will take some time from now to begin to see the actual impact of permitting electronic Wills, it is evident that technology continues to transform the practice of law as we know it. This legal innovation may be appealing to younger, technology-oriented individuals immersed in a digitalized lifestyle. The convenience and low costs of electronic wills will certainly be attractive to people with smaller estates. However, the concern of fraud and undue influence remains. This is especially true for the older generation that may not be up to date on technology and makes up a large portion of Florida’s population, and frankly the populace more likely to draft a Will to begin with.

The physical presence of an attorney during a Will execution is the preferred and most favorable way to protect and assure that the document establishes the true intent of the testator. Although potentially cost saving, the potential for fraud increases without the physical presence of an attorney as a safety net.

Thank you to Dana Stefanoni, our legal intern, for assisting in the research and for drafting most of this post.


Monday, April 11, 2016

Snowbird Attorney Blog is Coming soon!

Basically, if you live somewhere for part of the year (such as NJ, NY, or PA) and live somewhere else for part of the year (such as FL), you should read this blog.

Hopefully I will have this fully active by the summer.