Florida Elder Law & Estate Planning Blog

Electronic Wills Come With Perils

Electronic wills became legal in Florida on January 1, 2020.  As we reported in June, the passage of HB 409 allows wills to be created online, then signed, notarized and witnessed without requiring the will maker, notary and witnesses to  be physically in the same place. The execution process occurs over a secure video link and is supervised by a notary who is trained to ask specific questions to confirm the will-maker’s competence. There can only be one copy of the will itself, which exists only digitally, and must be kept by the testator or a “qualified custodian” authorized to store the document.

This process may be convenient for some Floridians who cannot easily travel to a lawyer’s office, and who also have a secure video link. However, further analysis of the legislation by the tech and legal communities identifies many perils in the process – perils that in 2017 led then-Governor Scott to veto the bill.

So what could possibly go wrong? For starters:

  • If the “qualified custodian” goes out of business, how will the documents be recovered? How long would that take?
  • Notwithstanding the notary’s questions, the possibility of fraud exists. Suppose there is someone off camera who the notary can neither see nor hear, coaching the will-maker to respond in a certain way?
  • Strong proponents of the new legislation are do-it-yourself will creation companies. A last will and testament should never be a do-it-yourself document. It requires expert input from an experienced attorney who knows the law and is fully familiar with the will-maker’s goals, and personal, family and financial circumstances.
  • If a Florida resident with an electronic will moves out of state, will the new state admit the electronic document into probate? At present electronic wills are permitted by only four states.
  • What happens when a will-maker sends a copy of the document to his adult child or children? What if there is cutting and pasting? Can the time stamp be altered? What if the will-maker accidentally deletes his/her own copy?
  • Last but certainly not least, what about cybersecurity? In recent years, data breaches have exposed the personal data of millions of Americans. Companies hacked include First Financial, Facebook, Equifax, Marriott and many more. Cold comfort for someone who plans to store his last will and testatment online with an authorized custodian.

One must change with the times, of course. But sometimes, sticking to old-fashioned ways of doing things is safest course. At this point, that can certainly be said about creating your last will and testament.