The usual estate planning process goes something like this: You call, make an appointment, sit down with the attorney for about an hour to discuss the details, and then wait for the documents to be drafted (in our office it’s usually no more than 2-3 weeks), and then you come back to review the documents and execute them. The law requires this execution be done before two witnesses, and in the case of certain documents, a notary. Our office supplies all of this so you don’t need to worry but you will be there anywhere between an hour and a half to two hours in most cases.
What if you could do this all from the comfort of your own home? Well, your dreams may be coming true, but not until after July 1, 2020.
2020 is the year of going virtual and it’s almost like the legislature knew this when they amended the Florida Statutes to allow for the electronic witnessing and execution of wills, other testamentary documents, and advanced directives (i.e., Power of Attorney, Healthcare Proxy)
The law has always required that a Will be signed in the physical presence of two witnesses and that those two witnesses attest to Testator’s execution of the Will by signing the Will as witnesses themselves. The Legislature amended Section 732.522 of the Florida Statutes to allow the witnesses to witness the execution of the documents via means of audio-video communication (i.e., video conference with audio) as long as:
- They are supervised by a notary public who is a certified Remote Online Notary;
- The witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and
- The notary complies with Section 117.285 of the Florida Statutes.
And this leads me to the next important piece of information: The law makes one very important exception: Vulnerable Adults.
If the signer is classified as a Vulnerable Adult, then these testamentary documents and advanced directives may NOT be executed electronically and all parties must appear in person. So, what classifies someone as a Vulnerable Adult? The statute defines it 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.”
There are a few other aspects to consider:
- What if we want to change or revoke it?
This can be done in the presence of the testator and at the testator’s direction by:
- Rendering Unreadable; or
The electronic Will with the intent and for the purpose of revocation. So if the Testator says “I want to do away with this” then that statement should prove intent enough of wanting to revoke the Will and then the Qualified Custodian (explained below) will need to perform one of the four acts above to effectuate this revocation.
- Who keeps the electronic will?
Luckily, the law has answered these questions. A Qualified Custodian is the individual (or company) charged with safekeeping Florida electronic wills until the testator dies. This Qualified Custodian must be domiciled in and be a resident of Florida (or in the case of a company, be incorporated or organized in Florida); must consistently employ a system for maintaining custody of electronic records and store electronic records containing electronic wills under the system; and must furnish for any 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 policies and procedures. Is it a huge responsibility? YES. Is it worth it? YES.
Making estate planning accessible to as many individuals as possible means we will have less litigation in Probate (although some will argue there will be more litigation over the electronic Wills). In a 2017 survey by Caring.com, it was stated that 64% of people ages 37 to 52 do not have a Will and nearly half of the individuals who took part in this survey ages 53-71 didn’t have one either.
In a recent article by Angela Moore, CFP of Modern Money Advisor, she states: “By not having an estate plan, you are essentially saying it’s too hard for you to think about it or deal with it, so instead, you choose to let your grieving children or your distraught spouse figure it out (and pay for it) all by themselves.”
Now, with electronic Wills (come July 1st), you can perform this selfless act and make sure your family and assets are protected for the future right from your couch.