Florida Electronic Wills: The Importance of a Qualified Custodian for Self-Proving Wills

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.

An electronic will is not self-proving if it fails to designate a qualified custodian of electronic will, even if there is a notarized self-proving affidavit.

The following is an overview of creating and executing a will online, including some potential benefits and limitations to consider.

One significant advantage of creating a will online is the convenience factor. By using an online service, you can complete the process from the comfort of your own home, without needing to find a traditional notary public or witnesses. Additionally, many businesses that offer notary services, such as UPS, AMSCOT, or your bank, may not notarize wills, making online options more accessible.

Another potential benefit of online wills is the video recording of the will execution process. This video can serve as evidence of your intentions if anyone ever contests your will's validity.

Additionally, online wills may eliminate the risk of losing your will. Most online services provide a certified paper copy, but they also store an electronic version of your will in secure backup systems, ensuring you always have access to a copy.

Finally, creating a will online may be a safer option during the COVID-19 pandemic, as it allows you to complete the process without leaving your home.

It's important to keep in mind that laws around electronic wills and their validity can vary by location, so it's essential to ensure that any online service you use is compliant with the laws in your area. Additionally, it's always a good idea to seek legal advice when creating a will to ensure that your wishes are properly documented and executed.

Remote Witnesses vs. Witnesses Physically Present

First and foremost, if you intend to use remote witnesses (witnesses not physically in the room with you) 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 with remote witnesses.  If you have qualified witnesses physically present with you, the electronic will is back in play.

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?

Maybe.  If you have two witnesses physically present with you during the online notary session, you can execute an electronic will.

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.

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.

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.

Secure Cloud Storage

• At our company, we offer private cloud storage that ensures the safety and confidentiality of your files. Our system replicates your files across multiple datacenter locations that are certified for their security and reliability, giving you peace of mind. 
  
• Your files are encrypted from end-to-end, which means that they're protected against unauthorized access at all times. You can view or download your files at any time using a link that's available to you 24/7/365. 
  
• We comply with global data privacy regulations to keep your files safe in the cloud. Our system is compliant with USA, EU/UK GDPR, and Canadian data residency laws, ensuring that your files are always stored securely and according to the relevant regulations.

Tamper-Proof Documents and Digital Signatures

When you use Florida Document Specialists to notarize a document, the notary will use digital certificates to ensure that the document is tamper-proof. A digital certificate is a type of electronic document that is issued by a trusted third party, such as a certification authority.

The digital certificate is used to verify the identity of the signer and to create a unique digital signature that is attached to the document. This digital signature acts as a seal of authenticity, indicating that the document has not been altered or tampered with since it was signed.

The digital signature is created using a complex algorithm that generates a unique code that is impossible to replicate. This code is based on the contents of the document, as well as the signer's private key, which is a unique identifier that is known only to the signer.

When the document is signed and the digital signature is attached, the notary will also include a digital certificate that verifies the authenticity of the signature. This certificate is issued by a trusted third party and contains information about the signer, the notary, and the digital signature itself.

The use of digital certificates and signatures ensures that the document is tamper-proof and that it cannot be altered or forged after it has been signed. This provides a high level of security and authenticity for online notarized documents, giving you confidence in their legal validity.

No.  Most Florida online notaries do not have the technology or training to execute electronic wills.

Some online notaries are ignorant of the rules and are performing unlawful notarizations of online wills.