One of the more recent developments in estate planning is the concept of electronic wills. Instead of signing a hard copy document in ink, an electronic will allows the testator (a person who has written a will) and witnesses to sign it electronically and a notary to notarize it electronically. Currently Nevada is the only state in the US where electronic wills are legal, but other states are trying.
Five states: Arizona, Florida, Indiana, New Hampshire and Virginia all introduced a bill this year seeking to validate electronic wills, however none of these bills passed into law.
Florida came the closest when the Florida Senate passed the controversial Florida Wills Act in May by a vote of 34 to 0. The act was expected to be signed into law by Governor Rick Scott however, on June 26, Florida’s governor vetoed the bill set to go into effect July 1. In a letter, Gov. Scott said the concept of remote notarization is meant to provide increased access to legal services such as estate planning, but he did not believe the bill adequately ensured authentication of the identity of parties involved.
Those in support of electronic wills contend that electronic wills allow more people access to estate planning through online tools without the cost of hiring an attorney. While this is beneficial, others are concerned that electronic wills do not have the traditional safeguards that have been put in place to protect the elderly from fraud or exploitation. Additionally, there are concerns that estate plans are too complex to create without an attorney’s assistance.
In Florida, the controversy revolves around the act’s changes to the will execution procedure and the ability for a non-resident to probate a will in Florida. Currently, every will signed in Florida must physically be in writing, signed by the maker at the end of the will, in the physical presence of two witnesses. The witnesses must also sign the will in the presence of the maker of the will and each other.
The Act would have allowed the maker, witnesses and a notary to participate in the will signing from different locations as long as they were connected through live audio and video connections. In addition, only the witnesses and notary have to be physically located in Florida for the signing. A secondary, but important issue is whether probating non-resident’s wills in Florida would unduly burden already overburdened courts here.
While this particular Act was vetoed, we expect to see more efforts in Florida as well as many other states, to legalize electronic wills. Stay tuned.
By Read Sawczyn
Vice President & Private Wealth Advisor
Additional articles from this issue:
2017 Second Quarter Review and Commentary
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