Electronic Wills Revisited

In a previous blog, we discussed Florida’s electronic wills law. Though passed by the legislature, it was vetoed by Governor Scott. At the time, Nevada was the only state that permitted Wills to be in electronic form. Some important changes have happened since the previous blog article was published. First, let’s look at why Governor Scott vetoed the previous bill.

Reasons for the Veto

Governor Scott’s biggest concerns were that testators (those who make a will) could be vulnerable to fraud and exploitation. In addition, proving the authenticity of the testator and witnesses was a hurdle. Finally, saving an electronic Will presents unique security problems.

It seems the main struggle is with finding a balance between the wish to use technology to make Wills more accessible and the need to protect people who sign electronically. Governor Scott outlined three concerns about the proposed law in his veto letter:

• Remote notarization may make it difficult to authenticate the identities of the testator and witnesses to the Will.
• Florida probate courts may be overrun by cases involving nonresidents whose only connection to Florida is through the qualified custodian of their electronic Will.
• If the testator’s state of domicile does not recognize electronic Wills, the testator may be considered intestate.

Rather than just vetoing the law, Governor Scott encouraged lawmakers to address his concerns in their next session. Meanwhile, Arizona and Indiana recently enacted laws allowing electronic Wills.

Arizona and Indiana Laws

To be considered valid, an Arizona electronic Will must meet the following criteria:

• Created and maintained as an electronic record.
• Electronically signed by the testator or by someone else at the testator’s direction.
• Electronically signed by at least two witnesses who were there when the testator signed the Will and who signed soon after the testator did.
• State when the testator and witnesses electronically signed the Will.
• Include a copy of the testator’s government-issued ID.

A qualified custodian must maintain the electronic Will at all times. This custodian cannot be related to either the testator or the witnesses.

Indiana law takes it a step further by allowing video recording of the electronic Will execution. Also, Indiana law notes that e-signing is not required, just permitted.

Don’t Wait

The future of electronic Wills in Florida is murky at best. Until the issue is ironed out, however, you still need a Will.