Have you heard about House Bill 409? It deals with the almost unbelievable subject of Electronic Wills. You read that right. Electronic Wills are coming to Florida, along with remote notaries.
I cannot even imagine how this will work, but I’m jumping on board and learning as much as possible before the bill becomes effective.
When does the new law become effective?
On July 1, 2020 for Estate Planning documents.
What is Remote Notarization?
The new bill proposes the creation of online public notaries in Florida to assist with the electronic wills. Basically, the notary would perform remote notarial acts. They would be able to do almost anything. Here are some requirements:
- The notary must be physically located in Florida when performing the acts.
- The person signing the documents or the witnesses may be outside of Florida.
The soon-to-be law creates such particular requirements that we will be lucky to have some brave souls sign up! The statute also caps the notary fee at $25! I’m scratching my head on this one as the “mobile” aspect takes so much more work as the typical notary process. I know a notary may only receive $10 for a document, but when it comes to a Will, I’ve seen rates up to $50.
Aren't Electronic Wills dangerous?
Electronic wills and remote notarizations have some dangerous aspects. As a result, the legislature worked hard to protect “vulnerable adults.” The notary must question each adult regarding their status as a “vulnerable adult.”
What is a vulnerable adult?
The proposed bill defines a vulnerable adult as “a person 18 years of age or older whose ability to perform normal activities of daily living or to provide for his or her own care or protection is impaired due to mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.”
Keep in mind that a “vulnerable adult” does NOT mean that the person lacks mental capacity to understand the nature and effect of the document he/she is signing. In that circumstance, the notary public may not notarize the signature.
How does the notary determine if an adult is vulnerable?
The Remote Notary must ask specific questions to determine status before notarizing the electronic will. If the Notary determines that the person signing the documents IS vulnerable, he/she must give an official notice to the adult that the documents may not be valid, and the notary must audio-video record the act. Further, the witnesses must be physically present during the signing. To me, it seems prudent to avoid electronic wills if the person signing them may be deemed a “vulnerable adult.”
Does the bill apply to more than Last Wills?
The new law expands beyond Wills. Estate Planning documents include:
-Wills
-Trusts with Testamentary Aspects
-Health Care Advance Directives
-Waiver of Spousal Rights under F.S. §732.701 or §732.702
-Powers of Attorney authorizing any of the banking or investment of powers enumerated in §709.2208.
This is not meant to be an exhaustive recap of the new House Bill, but serves to give you a snapshot of what is coming up next year. Stay tuned! In the meantime, learn more about digital assets here.
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