The Electronic Will

Effective July 1, 2020, electronic wills are permitted under F.S. 532.521–532.526. The definition of “electronic will” under F.S. 532.521(4) is identical to the definition of “will” under F.S. 731.201(40), except for the provision for electronic signatures prescribed by the code.

As with non-electronic wills, the electronic will formalities under F.S. 732.502 require the testator to sign in the presence of two attesting witnesses and the attesting witnesses to sign in the presence of the testator and each other. F.S. 732.522. Under F.S. 732.522, the presence requirement may be satisfied by using audio-video equipment that meets the requirements of online notarizations under Chapter 117, Part II, if

 (a) The individuals are supervised by a notary public in accordance with §117.285;

(b) The individuals are authenticated and signing as part of an online notarization session in accordance with §117.265;

(c) The witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and

(d) The signing and witnessing of the instrument complies with the requirements of §117.285.

Under F.S. 732.523, an electronic will is deemed self-proved if

(1) The acknowledgment of the electronic will by the testator and the affidavits of the witnesses are made in accordance with §732.503 [which provides directions and a form for self-proving a will] and are part of the electronic record containing the electronic will, or are attached to, or are logically associated with, the electronic will;

(2) The electronic will designates a qualified custodian;

(3) The electronic record that contains the electronic will is held in the custody of a qualified custodian at all times before being offered to the court for probate; and

(4) The qualified custodian who has custody of the electronic will at the time of the testator's death certifies under oath that, to the best knowledge of the qualified custodian, the electronic record that contains the electronic will was at all times before being offered to the court in the custody of a qualified custodian in compliance with §732.524 and that the electronic will has not been altered in any way since the date of its execution.

According to F.S. 117.285, during the execution of an electronic will, an online notary public may supervise the execution. When there is an online notary public witnessing a will (as well as several other estate planning documents) there are several additional requirements for execution. Specifically, a testator, must answer the following questions:

1. Are you under the influence of any drug or alcohol today that impairs your ability to make decisions?

2. Do you have any physical or mental condition or long-term disability that impairs your ability to perform the normal activities of daily living?

3. Do you require assistance with daily care?

If any of the questions are answered in the affirmative, the witnesses to the will (or other estate planning document) must be in the physical presence of the testator at the time of signing.

The notary public must also ask:

 1. Are you currently married? If so, name your spouse.

2. Please state the names of anyone who assisted you in accessing this video conference today.

3. Please state the names of anyone who assisted you in preparing the documents you are signing today.

4. Where are you currently located?

5. Who is in the room with you?

F.S. 732.524 specifies the qualifications and duties of the qualified custodian, the required length of time and manner for storing the electronic will, and procedures for ceasing to serve as qualified custodian. F.S. 732.525 requires the qualified custodian to “[p]ost and maintain a blanket surety bond of at least $250,000 to secure the faithful performance of all duties and obligations under this part” and maintain liability insurance for at least $250,000 in losses.