New Laws on Electronic Wills & E-Notarization: The Good, the Bad, and the Unknown

January 15, 2020

In some of the biggest estate planning news Florida has seen in years, electronic Wills and remote notarization (“online notarization or e-notarization”) came to life on January 1st, 2020. What does this mean for you? The new laws allow you to sign your estate planning documents, such as your Last Will and Testament “(“Will”), without having to travel to the physical location where your attorney or the notary is located. These documents can now be created, edited, signed, and authorized electronically, as the name implies.

Electronic Wills

Let us start with a little history. In 2017, the Florida Senate voted unanimously to authorize electronic Wills except that Former Gov. Rick Scott vetoed the bill, saying it failed to strike the proper balance between convenience and safety. His main concern was the rise in elder exploitation and fraud. He upheld Florida’s traditional approach to Wills which required “strict compliance” with all execution formalities (the creator of the Will, two witnesses and a notary must all sign in the presence of each other). The slightest slip up can get your Will invalidated by the court.

Thanks to the help of the Florida Bar’s Elder Law Section, additional protections for the most vulnerable citizens in Florida have been implemented. Those previous legal formalities are still in place, but with a digital twist. Unless the creator of the Will (known as the testator or testatrix) is considered a “vulnerable adult” – such as an individual who is losing cognitive abilities due to advanced age or declining mental health – the witnessing of a Will can be done remotely if:

  1. The individuals are supervised by a notary public;
  2. The individuals are authenticated and signing as part of an online notarization session in accordance with Florida Statutes Section 117.265;
  3. The witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and
  4. The creator provides, to the satisfaction of the online notary public, verbal answers to certain established questions such as “are you 18 years of age or older” or “are you signing this Will voluntarily” or “did anyone assist you in accessing this video conference? If so, who? Where are you? Name everyone you know in the room with you.”

As we stated, Florida law now includes electronic Wills under the definition of a Will. Any requirement that an individual sign their Will (or other documents) in the presence of others may now be satisfied by those others being present and electronically signing using audio-video communication technology in accordance with certain requirements. The new law also includes other estate planning documents, such as a trust with testamentary aspects under Ch. 736, a health-care advance directive, or a power of attorney authorizing any of the banking or investment powers spelled out in Florida Statute §709.2208.

Note that the new law does not allow a creator to grant his agent any estate planning “superpowers” using electronic witnesses or notaries. These superpowers are often found in the Durable Power of Attorney and more specifically, Florida Statute §709.2202(1) requires that certain grants of authority contained in a power of attorney must be separately signed or initialed by the principal (creator) to be valid.

What if the recording gets lost? Excellent question. If the recording of the audio-video clip of the online notarization of an electronic Will cannot be produced, the electronic Will is treated as if it has been lost or destroyed. To make an electronic Will self-proving, the acknowledgement of the electronic Will by the testator and the affidavits of the witnesses must be part of the electronic record. The electronic Will must designate a “qualified custodian” who must hold onto that electronic record at all times before being offered to the probate court and shall “regularly employ a secure system” for housing the electronic record.

Remote Notarization

Florida’s notary laws also have massive changes effective January 1st, 2020. Remote notarization is now permitted, meaning that a notary no longer must be physically present and watch the person sign the document requiring notarization (such as a Will). Instead, the notary can watch that person sign the document through a video that is getting recorded. Florida law requires online notarizations to occur using “audio-visual communication technology” in compliance with applicable law that enables real-time, two-way communication where participants can see, hear, and communicate with one another.

There are numerous other technology requirements for notarizing an instrument via remote connection. The person who performs the remote notarial act must be registered with the Department of State and is referred to as the “online notary public.” The online notary publics in Florida must be both bonded and insured. The acronym RON stands for “remote online notary,” and the software companies that offer the necessary video technology are called RON service providers.

An online notary public may only charge up to $25 per online notarization and up to $20 for making and delivering an electronic copy of an electronic record. Online notary publics are required to keep a secure electronic journal of the online notarizations they perform, and retain an uninterrupted and unedited copy of the recording of the audio-visual communication, which must include among other things, a declaration by the principal that his or her signature is being made knowingly and voluntarily.

Hold on, there’s more! Changes to Florida Statute Section 117.05 require revisions to the format of the notary block on all instruments and affidavits, not just ones that are electronically notarized. Failure to include the new language may result in the document being rejected when attempting to record it into the public records. The relevant portion should now read:
The foregoing instrument was acknowledged before me, by means of ☐ physical presence or ☐ online notarization, this ____ day of _______, __(year), by __________ …….
Similarly, for an instrument requiring an oath or affirmation, relevant portion should now read:
Sworn to (or affirmed) and subscribed before me by means of ☐ physical presence or ☐ online notarization, this ____ day of _______, __(year), by __________ ……
We hope these new laws knocked your socks off like it did ours. To learn more about these laws or to find out if your estate planning documents are up to date with current Florida law, contact OC Estate & Elder Law at (954) 251-0332 or for a free consultation. Our attorneys are fluent in English, Spanish, and Russian.