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Electronic Wills – Should You Have One?

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Signing an electronic Will
Electronic Wills are here in Florida. But you might want to take a “wait and see” approach.

Florida is one of the early states permitting residents to have Wills, along with some other types of estate planning documents, signed and completed electronically and online. This will require remote notarizations and witnesses to appear via certain approved secure video chat services, reports News Chief in the article “Electronic wills are coming, but are they a good idea?”

A movement to pass a similar law failed in 2017, as the result of a veto by then Governor Scott. However, a revised and approved version of the bill passed this summer and was signed into law by Governor DeSantis.

Under the new law, notaries who wish to be able to conduct executions of electronic Wills will be required to undergo additional training. Certain qualified and “state-approved” custodians will oversee safeguarding the completed electronic Wills for safekeeping until the creator of the Will dies, at which time the electronic Wills will be electronically filed with the appropriate probate court.

Florida is only the fourth state to implement laws related to the execution and storage requirements for electronic Wills. One concern is whether other states will honor these documents.

If other states won’t accept the electronic Wills, then a deceased person’s assets that are subject to probate administration in other states may not go to the person’s intended beneficiaries. Traditional, hard copy Will executions typically occur in an attorney’s office, with proper procedures and safeguards put into place by a licensed attorney who practices in this area of the law. Many of these same procedures and safeguards won’t be in place for electronic execution of electronic Wills.

There is concern that these Wills present an enticing target and that many family members will argue that the Will is not valid, because of undue influence or a lack of capacity.

The 2019 version of the law has some safeguards that attempt to protect vulnerable adults. However, until these electronic Wills go through probate contests, there won’t be much clarity for estate planning attorneys. A big concern is that if the documents can be executed electronically, there could be greater opportunities for criminals or people with bad intentions to more easily take advantage of vulnerable seniors.

Other concerns include: what fees will be charged by the state-approved custodians to lawyers who wish to create such documents; how much will the recurring custodial fees cost the person who signs the Will; what happens to the Will if the custodial fees aren’t paid; and how will the electronic custodians know someone died if they don’t die in Florida?

Whether you agree that electronic Wills are the future, this is still a very new process that has yet to be tried and tested. There will likely be more questions raised in the next few years about their safety and cases will be taken to court to resolve issues and challenges.

For most people, this is the time to wait and see how the electronic Will scenario works out. It may take a few years before the bumps are ironed out. In the meantime, meet with an estate planning attorney to create an estate plan that is on paper and follows a traditional process.

Reference: News Chief (August 23, 2019) “Electronic wills are coming, but are they a good idea?”

Other articles you may find interesting:

Does Having a Will Avoid Probate?

A Basic Form Doesn’t Work for Estate Planning