Florida Electronic Wills with Online Notarization

Florida Statutes Regarding Electronic Wills and Remote Online Notarization (RON)

In 2020 electronic wills became legal in Florida, with the implementation of a law permitting online notarization of most all legal documents.  Electronic wills (or eWills) in Florida became available to the general public beginning on July 1, 2020.

Chapter 2019-71 – Florida House Bill No. 409

Electronic Notarization – FS 117.021

Electronic Journal of Online Notarizations – FS 117.245

Online Notarization Procedures – FS 117.265

Supervising the Witnessing of Electronic Records – FS 117.285

Florida Qualified Custodians of Electronic Wills – FS 732.524

Vulnerable Adults – FS 415.102

Most certainly.

We’ve spoken with many attorneys about executing estate planning documents via remote online notarization.   We’re up and running and available to your practice.

We’d love to speak with you.  Please call 386-256-5540.

Yes.

A paper copy of an electronic will which is certified by a notary public to be a true and correct copy of the electronic will may be offered for and admitted to probate and shall constitute an original of the electronic will.

Florida Document Specialists provides a laser printed copy of the executed electronic will to each customer along with an original notarial certification.  This is mailed to the customer by USPS Priority Mail (with tracking number), within 72 hours of the execution of the electronic will.  This service is included in the package price.

On June 7, 2019, Florida Governor DeSantis signed the Florida Electronic Wills Act. This act allowed for the electronic signing, witnessing, and notarization of wills and other estate planning documents.

It has been lawful to execute an electronic will by online notarization since July 1, 2020.

Vulnerable Adults

First and foremost, you must not be classified as a vulnerable adult.  If the signer is a vulnerable adult, then the electronic will (and any other testamentary documents), may not be executed by remote online notarization.

Florida considers a vulnerable adult as:

“a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.”

If you are dishonest with your online notary, and it is later found that you were a vulnerable adult when you executed your electronic will, it will not be valid.

General Requirements for Executing an Electronic Will

Testamentary Capacity

Florida law requires that the testator exhibit a minimum level of capacity in order to execute a valid will. Section 732.501 of the Florida Probate Code sets a low threshold of capacity and simply provides:  Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.

What is “Sound Mind”

Whether one has testamentary capacity is a question determinable only by mental capacity of the testator at the time he executed his will. The making of a will does not depend upon a sound body but upon a sound mind.   The term, “sound mind”, means the ability of the testator “to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.”   In re Wilmott’s Estate, Fla. 1953, 66 So.2d 465, 467, 40 A.L.R.2d 1399; Newman v. Smith, 1919, 77 Fla. 633, 82 So. 236, 241; Hamilton v. Morgan, 1927, 93 Fla. 311, 112 So. 80; and Neal v. Harrington, 1947, 159 Fla. 381, 31 So.2d 391.

Method of Execution

In order for a will to be valid in Florida, it must conform with the execution requirements set forth in the Florida Probate Code. Pursuant to Section 732.502 of the Florida Probate Code, a will must be in writing and must be signed by the testator at the end of the document.  The testator will sign the electronic will by pushing a button under the supervision of a qualified notary public.

The testator’s execution of the will must be witnessed by at least two attesting witnesses who also must sign the will in the presence of the testator and in the presence of each other.

Undue Influence

The signer of an electronic will in Florida must be free from all undue influence.  Undue influence can be described when the testator (the person signing the will, the “testator”), is induced to act contrary to their own wishes.  The provisions in the will are actually another person’s wishes, not actually that of the testator.  If it is later proved that a testator signed his or her will under undue influence, the will could be made invalid.

If you are concerned about undue influence, you are encouraged to speak with a licensed Florida attorney prior to executing your will.

Some factors that could be considered undue influence are:

1. Was the alleged undue influencer present when the will was signed?
2. Was the alleged undue influencer present when the testator expressed a desire to make a will?
3. Did the alleged undue influencer recommend the lawyer that drafted the will?
4. Did the alleged undue influence know what the will said before it was signed?
5. Did the alleged undue influencer give the lawyer instructions on preparing the will?
6. Did the alleged undue influencer pick the witnesses of the will?
7. Did the alleges undue influencer keep the will after it was signed?

Unfortunately, no.

Although we completely understand that persons in nursing homes and assisted living facilities would benefit from remote online notarization, Florida law prohibits the online notarization of testamentary documents with remote witnesses by those considered to be, “vulnerable adults”.  One of the definitions of a vulnerable adult is a person who requires assistance with their day-to-day care.

We would also like to make clear that the discretion of our online notaries public is final in deciding whether or not to continue with an online notarization of a testamentary document.

Revoking a Will Under Florida Law

An electronic will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence.

Contact Florida Document Specialists for assistance.

We have a procedure in place to completely destroy the electronic will documents in our possession upon your verified, written request.

You should always keep a copy of the “Reference Number” that was assigned to your electronic will.

Florida Statute 732.901 directs that the custodian of a last will and testament must deposit the will with the clerk of court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead.

That being said, there are two different ways the “deposit” of your will can be facilitated.

1. As part of our service, you will receive a fully executed copy of your electronic will on paper, along with an original notarized certificate from the qualified will custodian certifying the copy to be an authentic and unaltered copy of the original.  You can keep this paper will in a safe place (as you would a traditional will), and make a responsible person of your choosing aware of it’s location.  The court should accept this document as the deposit of the, “original will”, since it is an electronically notarized document.  This is the preferred method.

2. If Florida Document Specialists is made aware of the passing of a person whose electronic will is in our custody, we are required by law to deposit the will with the clerk of court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead.  There is no additional charge for this service.

Your electronic will, the electronic notary journal entry, and the audio-video recording of the online notary session, will be retained by Florida Document Specialists until you tell us to destroy it.

Private Cloud Storage

• Your files are replicated across multiple SSAE 16 type 2 certified datacenter locations with SAS RAID storage, automatic failover and a 99.9% or better uptime SLA.
• End-to-end encryption protects your confidential data in the cloud from unauthorized access at all times.  You will be provided with a 365/24/7 link to view and/or download your files.
• Global data privacy compliance insures that your files are safe in the cloud with USA, EU / UK GDPR, and Canadian compliance built-in, including Canadian data residency.

File Backup Redundancy and Tamper-Proofing

In addition to our secure cloud storage solution, your electronic will, the notary’s journal, and the original audio-video recording of the online notarization, is stored by our online notary technology service provider using a best-in-class system creates a truly unique document security environment by establishing seven layers of security.

1. Cover page for all documents with bar coding and watermarking technologies

   • Each document contains a unique watermark specifically created for that document.
   • Each cover page has its own barcoding sequence utilizing the bates numbering system identifying it as the cover page.

2. Time stamping, bar coding, unique numbering, and watermarking for every page

   • Each document contains a unique watermark specifically created for that document.
   • Prevents document manipulation or camera-based attacks by stamping each page with the date and time the document was created, page numbers, unique bar codes, bates numbering system, and dynamically embedded watermarks.

3. Unique 128 bit IDs

   • Each document has a unique 128-bit ID, which consists of 32 hexadecimal digits, making it virtually impossible for any ID duplication.

4. Two unique hash fingerprints

   • Secure hash algorithms 384-bit or 512-bit one-way hashes or “message digests” to create a unique fingerprint of the documents; whereas, most providers use the very weak SHA1 algorithm which is vulnerable to attacks.

5. Compliant PKI technologies

   • Each document is protected with strong PKI hashing. Certificates are stored securely and encrypted in order to protect them from being compromised. This is a good thing. Ask your local hacker.

6. Unique bar codes

   • Each document will contain a unique bar code that identifies that individual page. The bar codes utilize the bates numbering system within the bar codes.

7. Unique Digital Signatures

   • A  signature method known as short-lived certificates is employed.  In most cases, certificates are issued every two to three years, but the certificates used by our provider expire several times daily. This method prevents a hacker of using a certificate to sign documents on your behalf if a compromise is not detected, where most providers will not be aware of a compromise until it’s too late.

There are many.  Here are a few:

• It is convenient.  You can execute your will without leaving home.
• You don’t have to find a traditional notary public.  Also, most notaries at UPS, AMSCOT, your bank, etc., will not notarize wills.
• You don’t have to find two witnesses and arrange for them to meet with you and the notary.  We supply both witnesses and the notary.
• There is a video recording of the complete execution of your will.  This video can help prove your intentions if your will is ever contested.
• The risk of loosing your will is virtually eliminated.  We will provide you with a certified paper copy, but if that is lost or stolen, your will is always stored in our best-in-class backup systems in our capacity as a Florida qualified custodian of electronic wills.
• Safer to use during the global COVID-19 pandemic.