Broward Injury Lawyer Blog
After several attempts to upload electronic wills in Florida, a measure approving them has passed and will go into effect Jan. 1, 2020.
HB 409 amended numerous sections of the state probate code pertaining to wills. Florida’s e-will law:
- Redefines the term “will” to conform to the changes made in the act;
- Exempts e-wills from provisions that govern revocation of wills and codicils;
- Lays out the manner by which e-wills and codicils can be revoked;
- Defining e-wills and establishing how it has to be executed;
- Outlining the requirements and duties necessary to serving as a qualified custodian of an electronic will.
Undoubtedly, there will be concerns about vulnerable adults, and it will be imperative for Floridians to contact an experienced probate litigation attorney regarding their rights and responsibilities where electronic wills are concerned.
Why E-Wills Will be the Future Nationally
Nevada was the very first state to pass an electronic will law back in 2001, requiring some kind of authentication characteristic, such as a fingerprint or retinal scan. Since then, aside from most recently Florida, Arizona and Indiana are the only other states to do so. Still, it’s something that was practically an inevitability, considering that (according to Pew Research Center):
- More than 8 in 10 Americans own a smartphone;
- Three-fourths own a computer of some kind;
- Half pay their bills online;
- Almost everyone uses the internet to shop.
Probate litigation attorneys know the field of law tends to lag behind the trends and times, but always catches up eventually.
As noted by the Harvard Law Review, courts and lawmakers have a number of options for fairly dealing with the facilitation of e-wills. When Congress passed the Electronic Signatures in Global and National Commerce (also known as the E-Sign Act) in 2000, it legalized electronic signatures in the use of interstate and international commerce. There was also the Uniform Electronic Transactions Act the year before to establish uniform practices. State-level legal reform, though, has been slower, and as probate is a state-level function, only a smattering of states will accept electronically-signed records.
Two years ago, the the Uniform Law Commission formed a committee charged with drafting a model law for states to follow in establishing the formation, validity and recognition of electronic wills. Florida lawmakers have tried for the last several years to get such legislation of the ground – including a bill last year that passed legislature, but was vetoed by then-Gov. Rick Scott.
Part of the concern was over the potential for coercion and undue influence for elder and vulnerable adults. Members of the Florida Bar’s Elder Law Section say they believe the issues have been addressed.
Concerns Regarding Electronic Wills
The process of drafting, executing and challenging wills has always been laden with legal formalities, which is to ensure integrity throughout the entire process.
The main reason e-wills have been the subject of such controversy is there is concern over protection of the testator’s intent and protect against fraud and undue influence – particularly of elder and vulnerable adults. This group may be especially at a unique disadvantage because they are more likely to be among those whose use or even exposure to electronics will have been more limited. It’s imperative that the law ensure their rights are protected.
Many of us use electronic signatures to make transactions, but the process of passing wealth from one generation to the next is undoubtedly a more weighty matter than buying a new set of dish towels next day from an online retailer.
E-will ease-of-use may have one important advantage: more people drafting wills. The AARP reports only about 40 percent of Americans have done any kind of estate planning. One of the main reasons people cite is lack of time and resources. With e-wills touted for convenience, it could mean more people make their end-of-life desires known. It is, however, imperative to ensure they do so with the assistance of an experienced Fort Lauderdale probate litigation attorney.
Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
CHAPTER 2019-71, Committee Substitute for, Committee Substitute for House Bill No. 409, June 7, 2019
