Effective January 1, 2020, the Electronic Wills Act will allow electronic signing, witnessing, and notarization of wills and other estate planning documents in the state of Florida. It will give the public a convenient alternative to in-person signings, hopefully allowing easier access to legal services for people who might not consider it otherwise. Electronically signing and filing legal documents is the next inevitable step in our technological world but there are some obvious hesitations about its implementation.
As Florida has the highest percentage of residents age 65 or older in the US, many citizens have concerns about the safety and confidentiality of an electronic will:
1. Cyber security. Anytime we deal with electronic documents or accounts, there’s a concern about security. Even though there are many ways to add solid protections in place, some worry that online predators could still access, intercept, or forge documents or personal accounts and information.
2. Cyber storage. Sensitive documents need secure, long-term storage and to be protected from hardware or software issues. We once stored information on floppy discs which are now completely obsolete; a will may not be altered or reviewed for years, so it’s critical to ensure it can be safely and easily stored for years to come. Another consideration is that electronic copies saved in several locations may make it difficult for a court to determine which one was executed most recently.
3. Lawyers may not be present for signatures. The proper safeguards typically put in place by a qualified lawyer may not be present during electronic executions of wills, so their validity could be questioned and rejected.
4. Elder or incapacitated persons abuse. Without effective safeguards, there is a serious risk for caretakers to take advantage of incapacitated or elderly persons, coercing them into signing or changing their wills electronically.
5. Transferring and honoring signatures across the country. Currently, there are only four states in the US approving electronic signatures. The biggest concern is that they won’t recognize or accept electronically signed documents from Florida. If other states will not honor an electronic will, then a deceased person’s assets subject to probate administration in other states may not go to the intended beneficiaries.
While these concerns are legitimate, there are some positive advantages to the Electronic Wills Act and advanced security measures that will hopefully ease public fear.
1. More people will protect their properties. For starters, this new act will hopefully encourage more people to put their wishes in legal writing. Many Americans don’t have wills because it’s extremely uncomfortable to think about one’s own death. However, they’re essential in protecting family assets for generations to come. This process will hopefully make it more convenient and less daunting or macabre.
2. Two witnesses are required. The testator must sign his/her electronic will in the presence of two witnesses, who must also E-Sign the document. They’ll use specific, approved, secure video chat services, like a protected Skype link, to witness and confirm their identity. Witnesses will also need to hear the testator approve his/her signature. With any luck, Florida will eventually implement more high-tech authentication processes like retinal scans, electronic fingerprinting, and voice recognition like Nevada has done.
3. Extra precautions and training for notaries. Notaries will have to undergo new mandatory training to conduct the execution of electronic wills. To provide adequate protection for testators and confirm their identity, they will have to ask the signer a series of specific questions. This is another great measure to further protect against fraud and ensure the validity of signatures.
4. Elderly/ incapacitated people can’t sign electronically. People considered “vulnerable,” like an elderly or potentially incapacitated person, won’t be able to sign electronically. They must still be witnessed in person for their protection. However, it will make it more convenient for people unable to come to an office to sign because the testator, witnesses, and notary won’t need to be in the same physical location.
5. Electronic documents are easier to update and access. Traditionally signed wills contain documents that are outdated, deteriorating, and often difficult to update. Electronic documents will be easier to store, access, and share with close family members or other individuals who might need to be informed.
Most concerns for the new Electronic Wills Act can be easily resolved as proper precautions are applied. The new legislation mandates that all electronic wills be stored by a qualified custodian, subject to strict regulations and liability should anything go wrong. Because they will require a specialized data-storage infrastructure very few law firms have at this time, implementing new procedures won’t happen overnight. It will be a gradual process in order to ensure the absolute safety and security of documents. Essentially, electronic wills will be just as secure, taking many of the same precautions if not more, as traditional wills.