Florida Self Proving Electronic Wills and Qualified Custodians
As technology continues to advance, so does the way we handle legal matters, including estate planning. In Florida, electronic wills have become a popular alternative to traditional paper-based wills. However, to ensure a smooth probate process, it’s crucial to understand that Florida electronic wills are not self-proving unless a qualified custodian of the electronic will is designated in the document.
In this blog, we’ll explain what self-proving wills are, the role of a qualified custodian, and how to make sure your electronic will is self-proving. We’ll also introduce Florida Document Specialists, a trusted qualified custodian of electronic wills in Florida.
What is a Self-Proving Will?
A self-proving will is a legally recognized document that requires minimal additional evidence to be considered valid during the probate process.
The self-proving aspect of a will can save time, reduce costs, and minimize disputes over the validity of the document. In Florida, a traditional paper will becomes self-proving if it includes a self-proving affidavit signed by the testator (the person making the will) and two witnesses, all of whom sign the affidavit in the presence of a notary public.
Electronic Wills in Florida
In 2020, Florida passed the Electronic Wills Act (Florida Statute 732.521-732.529), which allowed for the creation of electronic wills. These digital documents have the same legal standing as traditional paper wills, provided they meet specific requirements, including the presence of an “electronic signature.”
However, an electronic will is not considered self-proving by default, even if it contains a notarized self-proving affidavit and meets all other requirements. Florida Statute 732.523 explains this in detail.
The Role of a Qualified Custodian
For an electronic will to be self-proving in Florida, a qualified custodian must be designated in the document. A qualified custodian is a person or entity responsible for maintaining the electronic will and ensuring its safekeeping. The Electronic Wills Act sets forth specific criteria that a qualified custodian must meet, including:
- Being a resident of Florida or incorporated or organized under Florida law.
- Maintaining a physical office in Florida for providing custodial services.
- Providing the testator and the testator’s personal representative with access to the electronic will.
- Maintaining a system for the secure storage of electronic records, including protecting the records from unauthorized access and disclosure.
- Retaining the electronic will in a way that prevents tampering or unauthorized changes.
- Carrying cyber insurance to protect against hacking, data loss, and other digital threats.
Florida Document Specialists: A Trusted Qualified Custodian
Florida Document Specialists is a qualified custodian of electronic wills in Florida, meeting all the criteria set forth by the Electronic Wills Act. By designating Florida Document Specialists as your qualified custodian, you can ensure that your electronic will is self-proving and safeguarded against potential issues during the probate process.
The Dangers of Attorneys and Online Notaries Not Familiar with the Law
Unfortunately, not all attorneys and online notaries are well-versed in the requirements for self-proving electronic wills in Florida. Some attorneys and online notaries may notarize electronic wills without designating a qualified custodian, which renders the wills not self-proving and potentially defective. This oversight can cause significant issues during the probate process, including delays, increased costs, and disputes among family members. Additionally, a defective electronic will may require the court to admit additional evidence to prove its validity, which could be a time-consuming and costly process.
To avoid these problems, it’s essential to work with knowledgeable professionals, such as a well-informed document preparation service and a reputable online notary service, when creating your electronic will. By taking the time to research and choose a qualified custodian like Florida Document Specialists, you can ensure your electronic will is self-proving and compliant with the Electronic Wills Act. This extra effort will ultimately help guarantee a smoother probate process and protect your estate’s assets for your loved ones.
To make your electronic will self-proving, ensure that it designates a qualified custodian like Florida Document Specialists, who meets the requirements set forth by the Electronic Wills Act. The document should also include an electronic notarization by a Florida notary public and electronic signatures by the testator and two witnesses. As with traditional wills, all parties must sign in the presence of each other. By taking these steps, you can help guarantee a smooth probate process and protect your estate’s assets for your loved ones.
Frequently Asked Questions (FAQ)
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.
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.
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.