Electronic wills, or e-wills, are boilerplate legal documents purchased online, electronically signed and for a fraction of the cost of visiting an estate planning attorney. (These documents also exist for things like Florida power of attorney, health care power of attorney and even prenuptial agreements, but each is a separate discussion).

The presumption is estate attorneys may have their feathers ruffled that potential business is going to a bot. However, the real reason so many Florida estate attorneys are concerned about the prospect of widespread e-wills is their potential for serious error, abuse and fraud.

The worry is that this could lead to a substantial uptick in otherwise preventable Florida will contests (where the validity of a will is challenged on grounds like undue influence, fraud, lack of capacity or lack of formalities). Objectively by comparison, estate planning services are generally less expensive-time consuming. Electronic Wills Can’t Be All Bad – Right?

In defense of e-wills, people are busy and increasingly comfortable the breakneck pace of evolving technology. It’s cheaper and, at least in the short run, a bit more convenient – particularly for those “only making a few changes” to an existing will. It may increase the overall number of people with some type of will, which in some cases (not all) can help to clarify decedent’s wishes and expedite the process.

So no, the prospect isn’t all bad for consumers. You should know, however, that it’s not consumer advocates currently making such an aggressive push to move legislation on this front. It’s technology upstart venture capitalists.

It’s unclear to what extent consumers may be able to rely on electronic will technology systems to meet minimum state formality requirements, verify authenticity, shield against fraud and retain records. These firms don’t provide legal advice and will likely state upfront any error you make – whether due to a typo or not fully understanding the question – it won’t be on them.

In light of this, it’s probably not a bad thing that the legal field of Wills, Trusts and Estates is a bit more resistant to change than even most other areas of law. Nevada is the only state as of this writing to adopt an electronic will statute, but more are likely to come – including in Florida.

Florida’s Flawed Electronic Will Proposal Vetoed

Two years ago, state lawmakers introduced the Florida Electronic Wills Act, which would have expressly allowed electronic wills in Florida. The measure passed muster with the majority of state senators and representatives – only to be vetoed by the governor.

Although careful not to foreclose completely on the possibility of e-wills in Florida, then-Gov. Rick Scott rejected the bill because of its:

• Failure to ensure authentication of parties’ identities;
• Potential for non-Florida residents to bring their electronic wills into Florida probate, potentially creating a bag log here with complicated cases if the testator (will creator’s) home state doesn’t accept electronic wills.
• Major potential for fraud with a provision that allowed “remote witnessing and notarization.” This perhaps was the most concerning provision, as it would have allowed testator – and the two mandated witnesses plus notary – permission to “sign” documents electronically simply by typing their name. No requirement was indicated for verification by a trusted encryption service. The bill would have even allowed video conference signatures.

That last provision alone would have opened the door to a lot of potential fraud – and likely a flood of Florida will contests.

It’s not that courts wouldn’t deem some of those wills valid, but a system that might allow alteration of one’s entire estate or inheritance just by typing another’s name – without so much as a PIN – would be rife for challenge.

Experienced Fort Lauderdale Estate Lawyers Working for You

It’s possible even today for those with smaller, uncomplicated estates with no warring relatives to have a DIY will conforming to all existing statutory requirements recognized and affirmed by a Florida court. The problem is people don’t realize how complicated their “small” estate is all the potential pitfalls that come along with making your own amendments to an existing document.

Ensuring your will has the right combination of technical legal terms on a page is only a small part of what Fort Lauderdale estate attorneys do. We’re ensuring it meets your wishes, advising on the best estate structures to make that happen.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

The Future of Electronic Wills, Oct. 15, 2018, By Dan Denicuolo, ABA Journal

More Blog Entries:

Florida Probate Lawyer: How Much Time Do I Have to File a Will Contest?, Oct. 30, 2018, Fort Lauderdale Estate Lawyer Blog

Although reason it’s better to have something than nothing at all (64 percent of Americans don’t have a will – 55 percent of those being parents), the fact is if you are not experienced in handling these types of complex legal matters and anticipating certain contingencies, you may end up creating even more of a mess. Far too many people underestimate the complexity of their estate. It goes beyond simply divvying up the contents of a bank account. Everything – from identifying an executor or trustee to updating your beneficiary lists to gifting money to minors – all of these things require careful consideration.

Drafting your estate plan should come only after a well-thought-out estate and financial plan. If all you do is “fill-in-the-blanks,” that is not reflective of such a process. Further, one size does not fit all, and you also need to be sure that the document you have completed meets all the requirements for what is valid in your state. For instance, F.S. 732.502 requires two witnesses to properly execute a will in Florida, while Pennsylvania requires three. Further, these witnesses must sign in the presence of the testator and each other, which generally requires a self-proving affidavit. Usually, it’s the drafting attorney who signs these affidavits in your presence, but if you do-it-yourself on the internet, you won’t have this option.more

As our probate litigation attorneys in Fort Lauderdale can explain, search engines may help you dig up the necessary documents, but they aren’t going to provide you any meaningful advice that will take into account the specific elements of your personal and financial life. Some of the snags some people hit when they go for do-it-yourself estate planning:

• The law has changed. Laws can be fluid like everything else. That’s why even if you have all your planning in order, it’s a good idea to revisit it after major life changes or every few years.
• You create an unnecessary tax for yourself in cases where state and federal tax laws substantially diverge.
• Your will is no longer valid. Case-in-point: Your spouse was named as the primary beneficiary on your will, but then your spouse preceded you in death and you did not update your will. The will is no longer valid. This will mean the laws of intestate succession will kick in, which means the state decides where your assets will go. Often, it’s your next-of-kin, which may technically be individuals with whom you are not close.
• You granted assets or money to minors with no restrictions. This can lead to problems on many fronts. One way to avoid this is to establish a living revocable trust, wherein a trustee can help that minor use the money responsibly until they reach a certain age (usually around 25).

There is good logic in the phrase, “If you want to save money, hire a professional.” Although it’s not cheaper in the short-term, helping you avoid mishandled legal affairs that can bleed you of money and assets and cause strife among loved ones.

Call Fort Lauderdale Probate Litigation Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Do It Yourself Estate Planning–A Uniquely Bad Idea! May 17, 2011, By Rob Clarfeld, Forbes.com

More Blog Entries:

Does Florida Probate Court Require Families to Pay Decedent’s Debts?, March 28, 2018, Broward Probate Litigation Lawyer Blog

One of the primary reasons people avoid estate planning is because they erroneously assume it’s something reserved for the wealthy and maybe the elderly. The fact of the matter is, pretty much everybody has an estate and people tend to underestimate the confusion or even animosity that can arise among surviving loved ones regarding the contents of that estate. That includes the care and well-being of any young children you have, should something happen to you and your spouse.

A review of your estate planning documents may not sound like a particularly festive way to being a brand new year, but it is a smart one. You’ll want to make sure that your will, trust and powers of attorney still comply with your wishes. And if you don’t have these in place, it’s time to make it one of your resolutions to do so.more

Our probate litigation attorneys in Fort Lauderdale know that while you can never predict what the future may hold, there are some common threads we see when disputes arise. We also recognize how they could have been prevented. Some things to consider in reviewing or drafting your estate planning files:

Examine what changes have occurred in your life since you last updated your estate documents. If you have gotten married or divorced, had a child, moved or had some major financial event occur, these changes could have an impact on your estate, and these changes may need to be reflected in your updated documents.

• Look over your will and/ or revocable trust. These are documents that indicate where your assets will go at the time of your death. You need to make sure that the person you have listed as your personal representative and/ or trustee are up-to-date, that the beneficiaries you name reflect who should receive your money and that you have clearly stipulated where certain gifts (i.e., heirlooms or jewelry) should go. Some people even outline where their pets should go. Having all of this up-to-date can help avoid probate litigation among survivors.
• Update your financial power of attorney/ health care power of attorney. These are individuals you name to be in charge of either financial and business matters or decisions pertaining to your health care if you are incapacitated.
• Review your insurance and retirement plans to make certain the beneficiaries listed therein are still accurate. If you have been through a divorce or other major life change, it’s possible you may want to update this information to reflect your wishes.

If a dispute does arise involving an estate, an experienced, compassionate probate litigation attorney can help you navigate the complex and emotional process.

Call Fort Lauderdale Probate Litigation Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Estate Planning At Any Age: It’s Not Just for the Wealthy, Dec. 20, 2017, Ameritrade