Governor Scott Kills Electronic Wills Bill

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Leaving a will to designate how property will be distributed after your death is a very traditional and long-followed method for estate planning. For most of history, these documents were memorialized on paper, which left them susceptible to loss, destruction or damage. With the advent of computers, these documents could at least be drafted in a format that allowed for easy retrieval, though a physical paper copy with signatures was still necessary to execute a will. All of that was about to change in Florida with the passage of a bill that would have permitted the electronic storage, notarization and witnessing of wills, in hopes of reducing the ability of a disgruntled party from changing or destroying an otherwise valid will. However, this leap into the 21st century was abruptly halted last month when Governor Scott vetoed the electronic wills legislation over concerns the bill lacked sufficient safeguards against fraud and exploitation. He also expressed reservations about the additional burden that could be placed on Florida’s courts from wills by non-residents that were only created and stored in this State. This leaves the law on the creation of wills in the same place, and places Nevada as the only State that currently permits the virtual creation and storage of wills. Since the current process is here to stay for the moment, a brief overview of the requirements to create a valid will, as well as options for safeguarding and preserving the existence of all estate planning documents, will follow below.

Creating a Valid Will

As noted above, a will’s primary purpose is to distribute a person’s property after death, but the rules for what may be included within a will allow for other provisions as well, beyond merely identifying who is to receive a particular piece of property. Other possible provisions in a will include:

  • naming a guardian for minor children in the event of a parent’s death or incapacity;
  • naming a personal representative (the individual charged with ensuring the terms of the will are carried out); and
  • naming a person to manage property for the benefit of minor children.

The formal requirements for the document itself are relatively few – it must be signed by the creator in the presence of two witnesses, and signed by the witnesses as well. While many assume a will must be notarized before it is valid, Florida does not have such a requirement. However, notarization makes the will “self-proving.” This means a court will automatically recognize the document as valid and dispenses with the need to contact the witnesses to verify its legitimacy, which speeds up the probate process. To self-prove a will, the creator and both witnesses must appear before a notary and sign an affidavit attesting to each person’s identity, and that everyone knew they were signing a will.

Safeguarding Important Documents

Once a will is created, the next big question becomes how to securely store it for safekeeping. The relevant concerns driving this decision are:

  • protecting the will from theft or damage/destruction in a fire, flood or other natural disaster;
  • that key individuals know where the document is when the will is needed; and
  • where to store the will to maintain privacy.

The first choice for many would be at home with other important financial documents, which certainly covers privacy and accessibility, but does not address protecting the document from damage. A fireproof safe could be a good option for mitigating possible physical damage, assuming the personal representative knows how to open it. Another possible alternative is a safe deposit box at a bank. This option is good for privacy and protection, but can present accessibility problems if the will’s creator is the only authorized person on the account. In this situation, a court order may be necessary for someone else to open the box, adding extra time and cost to the probate process. To avoid this complication, name a spouse or personal representative as a joint box holder so an additional person has the authority to open it.

Talk to an Estate Planning Attorney

Executing an estate plan that adequately addresses your needs requires careful consideration of a number of different options. An estate planning attorney is in the best position to know which option will provide the necessary protection and direction you are seeking. The Tampa law firm of Bubley & Bubley, P.A., using decades of experience, will put together a comprehensive estate plan to address all your needs and any eventuality. Contact us to schedule a consultation.

Resource:

wealthmanagement.com/estate-planning/florida-governor-vetoes-electronic-wills-act

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