Dana Carlson Gentry
Florida Board Certified in Wills, Trusts & Estates
In July 2020 Floridians will be able to create “electronic wills” expressing how they wish their property to be distributed upon death, audio and videotaping the entire process. One must read several chapters of the Florida statutes dealing with Wills, Notary Publics, and Uniform Electronic Transactions to understand this complicated alternative will execution procedure that will be available next year.
Assume Jill, a ninety (90) year old widow and longstanding client calls me to change her Will and trust and asking to use the electronic will process. She wants to sign the documents in the comfort of her own home. Jill is sharp mentally, handling her own investment decisions, but uses a wheelchair or walker because she is no longer able to walk far without assistance. She has two adult children, Matt who lives in Florida and Anne who lives in North Carolina. Matt and Anne each have two children, who are also adults. Jill has a full-time caregiver, Mary, who she pays to live with her and assist her in daily living. Jill owns her own home and is very close to her neighbors, Andrew, a widower and retired engineer, who lives in a home on her left, and Amanda and John, a young couple with two small children on her right. John works from his home and is available to assist Jill at any time.
Jill’s estate plan changes are simple. She wants to give small specific cash amounts to her 4 grandchildren in her Revocable Trust before dividing the remainder of her trust assets equally between her two children. Jill wants to sign a new Will giving all her jewelry to Anne (which Matt knows), with the balance of her tangible personal property shared equally between Anne and Matt. Jill wants the remainder of any assets she owns individually, if any, to be transferred to the Trustee of her Revocable Trust. Jill wants Matt to be first-named Personal Representative under the Will since he is a Florida resident, and Anne, as her alternative Personal Representative. Her goal is to have all her assets in her Revocable Trust at death, so that there is no need for a probate administration and she has approved the Will and Trust amendment drafted for her.
I inform Jill that we can use the electronic will process for the new Will only. The statute does not allow electronic signing of a Revocable Trust or an amendment to one. The new Statute does allow for Electronic Wills with Testamentary Trusts, a document not appropriate for Jill’s goals. Jill can execute the trust amendment in front of disinterested witnesses in the traditional written format at her home. Jill understands but still wants to create the Electronic Will and requests we find her a Florida Qualified Custodian to retain custody of it.
Witnesses Andrew and John will come to Jill’s home at the time of signing. Tony, a staff member of our office will only be able to notarize the will as an online notary if he took the required 2 hour education course approved by Florida, and obtained an appropriate surety bond and errors and omissions insurance policy. Tony must choose a qualified and insured online notarization service provider (a RON service provider) that will audio and videotape the procedure. Tony will most likely have to use the same service provider for the next client wanting an Electronic Will because he must notify the Florida Department of State within 30 days every time he changes his service provider.
On the day of signing all the required parties, Jill, Andrew, John, are in Jill’s living room, with the RON service provider Martin who will record everything that happens. While Notary Tony may be present through audio/visual means using the qualified RON service provider, he also is present in Jill’s living room. Questions and procedures will be required during the execution process of the Electronic Will not a part of the standard written Will procedures. Even if Jill did not have Mary as a full time caregiver Martin, the RON service provider, not Notary Tony, first must ask Jill:
1. “Are you under the influence of any drug or alcohol today that impairs your ability to make decisions?”
2. “Do you have any physical or mental condition or long-term disability that impairs your ability to perform normal activities of daily living?”
3. “Do you require assistance with daily care?”
Because Jill will answer yes to the last two questions, the witnesses must be present in the same room with her. If Jill could answer no to all 3 questions, John or Andrew could have witnessed by video using the RON service provider (even if one of them was out of state in Georgia at the time). After asking these three questions, Martin must give Jill a written notice that states: “If you are a vulnerable adult as defined in Section 415.102, Florida Statutes, the documents you are about to sign are not valid if witnessed by means of audio/video communication technology. If you suspect you may be a vulnerable adult, you should have witnesses visually present with you before signing.”
To identify Jill, Notary Tony must ask her five or more questions that have a minimum of five (5) possible answer choices per question. Each question must come from an outside source of public and proprietary data and be identifiable by Jill’s social security number or other identification information or her identity in historical events records (i.e. deed, marriage license etc.). Jill’s answers to all questions must be made within two minutes and she must answer eighty percent (80%) of the questions correctly. If she does not answer 80% of the questions correctly, then Tony may ask five (5) questions one more time so long as he does not ask more than 3 questions from the first failed attempt. If Jill cannot answer within the 2 minutes or does not answer 80% of the questions correctly the second time, then the meeting ends and no Will is electronically signed.
If Jill passes the test, for her signature, more questions must be asked that are not asked in written Will signings. A wrong answer to any of these questions, does not invalidate the signing, but can be used as evidence in a Will contest after death. Notary Tony must ask Jill if she is married even though she has been a widow for years. He must also ask her to:
“1. Please state the names of anyone who assisted you in accessing this video conference today.
2. Please state the names of any one who assisted you in preparing your documents you are signing today, and
3. Where are you currently located?
4. Who is in the room with you?”
Then Tony may ask the other traditional questions most lawyers ask in a Will execution to make sure that Jill is voluntarily executing the Will and she is not under duress or undue influence in signing it. Jill and the witnesses must all be videoed during their entire respective signings. Jill’s electronic signature may be an electronic mark visibly shown in the records as a signature that she intended to be her signature on the Will, and not a traditional signature.
After Jill signs, Notary Tony may begin the identification of the two witnesses in the video. Tony would ask Andrew and John to verbally confirm his identity by stating his or her name and current address on the audio/visual recording as part of the act of witnessing, just before each one signs.
All Electronic Wills must be self-proved. The self-proof must state the name of the Qualified Custodian who will hold the electronic Will records until the time that the Will must be filed with an appropriate court. The Custodian of the Will at the time of the Jill’s later death must transmit it to the appropriate court and certify under oath that to the best of the custodian’s knowledge the electronic record contains the electronic will at the time of signing before being offered to the Court and it has not been altered in any way.
Notary Tony must keep a detailed electronic journal accompanying the electronic will. The journals must be kept in a secure place with back-up copies and security protections to prevent unauthorized use. It must include detailed information as to time and place and evidence of identity such as a driver license copy, along with other information. This Journal and recordings must be maintained for at least ten (10) years.
The Qualified Custodian must have its own liability insurance and maintain Jill’s privacy disclosing information on the Electronic Will and record only to Jill and those she has authorized to receive information during her lifetime. The retention requirements for the electronic will audio/video and related documentation also require the Custodian to include a written backup of the proceedings, which our firm would also need to retain. The Custodian can elect to destroy the entire electronic record at any time after the earlier of the 5th anniversary of the conclusion of the administration of Jill’s estate or 20 years after her death. But, if upon Jill’s death no obituary appears in the newspaper and the family does not communicate with the Custodian or provide a death certificate, the Custodian will not be able to accomplish its obligation of filing the Will with an appropriate court. Although no detailed guidance is provided yet, the Custodian will be allowed to charge a fee for retention at some point, or a fee for a request for copies of the electronic record by Jill after the first request.
Many clients generally sign new wills and revocable trusts at the same time and sometimes want to update their durable business powers of attorney and health care surrogate and advance directive documents. While the new statute states powers of attorney or health care advance directives can be electronically signed, it specifically prohibits the signing of a durable power of attorney that contains special transactional powers, like gifting powers, which some clients request. It also fails to provide any detailed guidance on how to sign powers of attorney or health care advance directives after the RON service provider asks the first three questions on disabilities. Practically speaking, most clients will find it more economical and less time consuming to arrange for standard written executed Wills, then to attempt to create an Electronic Will as the statute is now written.
If you have questions about electronic wills or any estate planning matter, please call our office to schedule an appointment with Dana Gentry or any attorney in our estate planning group.
