You’ll Be Able to Get an Electronic Will Soon, But Should You?

Starting January 2020, Floridians will be allowed to sign their wills and other ancillary estate planning documents electronically. Traditionally, estate planning documents must be signed in-person, with pen and paper, before two witnesses and a notary – safeguards put in place to prevent abuse and substantiate validity.

But proponents of the bill say it’s a matter of convenience, accessibility, and keeping up with technology. Some elder law attorneys argue that E-wills are more convenient for seniors who can’t easily leave the house to visit a lawyer’s office. This may be true, but there are also plenty of lawyers willing to make house calls for unique circumstances.

So who else is pushing for E-wills? Online companies that sell boilerplate, form wills. They want to make it easier for the DIY folks to complete all of their estate planning online, without having to worry about finding a notary and witnesses (let alone an attorney).

Many attorneys actually lobbied against the Electronic Documents Act, arguing that the there was too much room for error and abuse. In fact, the bill was vetoed a couple of years ago for this very reason.

However, the new law has a variety of procedures and rules – 78 pages to be exact – to protect vulnerable will makers. In short, the new law requires audio-video technology through a specified provider, additional proof of confirmation of the principal, advanced training for notaries, and insurance and bond must also be provided by the notary.

There’s a lot of room for error, and a huge amount of work and responsibility for a notary. Most notaries simply will not want to go through the hassle. In all likelihood, we’ll see online document providers offer this service since they already have a stake in the game. We’ll also see companies emerge that exclusively provide online notary services.

Even if executed properly, there’s another big reason why you should hold off on signing your will electronically: probate rules. Every state has different rules as to whether a will is acceptable for admission to probate court. I usually advise people that there’s a good chance their Florida documents will suffice if they move out of state, but it’s always best practice to update your documents for your state of residence. Oftentimes, however, people move and then die before they get around to updating their documents.

Since Florida is only the fourth state to enact an electronic documents law, it’s questionable whether other states will honor an electronic will. This means that any assets distributed through the will might not go to the intended beneficiaries and instead pass via state statute.

While I love the idea of making things more convenient for my clients, I don’t like the fact that there are too many unknowns. I caution you to wait and see what kind of litigation this brings about, and also wait for other states to adopt similar laws. Plus, I really love seeing all my clients in person!