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Overview of Florida’s Pending Electronic Wills Act

Posted on: February 6th, 2017
electronic willsAs most industries and institutions migrate toward paperless document storage, Florida lawmakers have proposed a bill that imposes requirements and limitations on electronic wills. 

While the term digital estate planning refers to developing provisions for post-mortem transfers or disposition of online assets (iTunes, photo storage, domain registrations, Google Wallet, PayPal balances, and other digitally-accessible accounts), S.B. 206, known as the Florida Electronic Wills Act, addresses a digital component of one’s estate plan. An electronic will is one that is prepared, executed, and stored entirely on digital platforms.

As the Act’s name implies, it proposes to regulate execution of electronic wills. Provisions address both wills created in Florida and in other jurisdictions. If passed into law, the Act would permit electronic wills meeting certain requirements to be admitted to Florida probate. The legislation would deem qualifying electronic wills equivalent to traditional non-digital wills for estate administration purposes. 

Under existing Florida law, a (non-digital) will may be revoked by the testator, or another party acting per the testator’s wishes, “by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent.” The Act exempts electronic wills from revocation by these manners. As of this writing, no other means of revoking an electronic will are included in the proposed legislation other than developing and executing another will or electronic will with provisions that revoke the previous one.

Florida personal representatives overseeing estate administration involving an electronic will would follow new laws if the Act passes. The pending law takes into account electronic wills may be used by residents and nonresidents of Florida. For personal representatives managing probate in Florida for nonresidents, the Act provides that probate of an electronic will may be filed in the county where the personal representative resides.

The Act also defines a ‘qualified custodian’ of an electronic will and imposes specific duties on the custodian, such as a reliable system for electronic recordkeeping, deliver court-requested copies of an existing electronic will as well as any earlier versions, and provide courts with information regarding the storage, transfers, and communication involving the electronic will. The custodian is permitted to destroy the electronic will and records of maintenance five years from the date the electronic will is filed in Florida probate.

If passed, the Act becomes effective July 1, 2017. With many potential changes ahead for Florida probate, personal representatives seeking clarification with estate administration procedures would benefit from probate counsel. Contact a Florida probate attorney to learn how existing and pending legislation affect an estate.
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