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Are Electronic Wills in Florida’s Future?

Are Electronic Wills in Florida’s Future?

Are Electronic Wills in Florida’s Future?

A bill is presently before the Florida Senate that could make Florida the second state in the country, after Nevada, to authorize the use of electronic wills.

Historically, to be effective a will had to be in writing. But with today’s advanced technology, the question of what constitutes a writing is open to debate. More and more often, electronic signatures are used in closing transactions, and an increasing amount of our “writing” is done on tablet computers.

Under the proposed legislation, to be a “self-proving” will (which is much more efficient in terms of probate administration), the testator must, in addition to other requirements not listed here, either deposit the will with the clerk’s office before death with a certification that it is the testator’s valid will or the testator can have the electronic will designate a “qualified custodian” who will certify under oath, upon filing the will, that to his/her/its best knowledge the electronic will was at all times under the control of the qualified custodian before being offered to the court, and that the electronic will has not been altered in any way since the date of its execution.

To serve as a qualified custodian of an electronic will a person must not be an heir or devisee of the testator; must be domiciled in and a resident of Florida or be incorporated or organized in Florida; consistently employ a system for ensuring the safekeeping of electronic records and store electronic records containing electronic wills under such system; and furnish for the court hearing involving an electronic will that is currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualified custodian’s qualifications, policies, and practices relating to the creation, sending, communication, receipt, maintenance, storage, and production of electronic wills. The bill provides in some detail for the liability and obligations of the qualified custodian and the manner in which the qualified custodian may cease serving.

This proposed legislation does not allow a more casual approach to the preparation of wills, only an adaptation to modern technology. If the legislation is passed, wills must still meet with strict formalities of signing.

Interestingly, the Nevada statute requires that, in addition to a date and an electronic signature, the electronic will contain at least one “authentication characteristic” of the testator. Authentication characteristic means a characteristic of a certain person that is unique to that person and that is capable of measurement and recognition in an electronic record as a biological aspect of or physical act performed by that person. Such a characteristic may consist of a fingerprint, a retinal scan, voice recognition, facial recognition, a digitized signature or other authentication using a unique characteristic of the person. The proposed Florida statute does not have this provision.

The proposed legislation is subject to change prior to finalization and there is no assurance that it will pass, but three other states are proposing an electronic will statute in 2017, so this might indicate a trend. There is no need to be concerned if you have a correctly prepared traditional written will. These will continue to constitute the large majority of wills into the foreseeable future.

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