Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 206
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/24/2017           .                                

       The Committee on Judiciary (Passidomo) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete lines 81 - 360
    4  and insert:
    5         732.521 Short title.—Sections 732.521-732.527 may be cited
    6  as the “Florida Electronic Wills Act.”
    7         Section 4. Section 732.522, Florida Statutes, is created to
    8  read:
    9         732.522 Definitions.—As used in ss. 732.521-732.527, the
   10  term:
   11         (1) “Electronic record” means a record created, generated,
   12  sent, communicated, received, or stored by electronic means.
   13         (2) “Electronic signature” means an electronic sound,
   14  symbol, or process attached to or logically associated with a
   15  record and executed or adopted by a person with the intent to
   16  sign the record.
   17         (3) “Electronic will” means a will, including a codicil,
   18  executed in accordance with s. 732.523 by a person in the manner
   19  prescribed by this act, which disposes of the person’s property
   20  on or after his or her death and includes an instrument that
   21  appoints a personal representative or revokes or revises another
   22  will or electronic will.
   23         (4) “Qualified custodian” means a person who meets the
   24  requirements of s. 732.527(1).
   25         Section 5. Section 732.523, Florida Statutes, is created to
   26  read:
   27         732.523Electronic wills.—Notwithstanding s. 732.502:
   28         (1)An electronic will must:
   29         (a)Exist in an electronic record.
   30         (b)Be electronically signed by the testator in the
   31  presence of a notary public who is, or at least two attesting
   32  witnesses who are, in the same room as the testator.
   33         (c)Be electronically signed by the notary public and the
   34  two attesting witnesses in the presence of the testator and, in
   35  the case of the witnesses, in the presence of each other. The
   36  notary public’s signature must be accompanied by a notary public
   37  seal that meets the requirements of s. 117.021(3).
   38         (2)Except as otherwise provided in this act, all questions
   39  as to the force, effect, validity, and interpretation of an
   40  electronic will that complies with this section must be
   41  determined in the same manner as in the case of a will executed
   42  in accordance with s. 732.502.
   43         Section 6. Section 732.524, Florida Statutes, is created to
   44  read:
   45         732.524 Self-proof of electronic will.—An electronic will
   46  is self-proved if all of the following requirements are met:
   47         (1)The electronic will is executed in conformity with this
   48  act.
   49         (2)The acknowledgment of the electronic will by the
   50  testator and the affidavits of the witnesses are made in
   51  accordance with s. 732.503 and are part of the electronic record
   52  containing the electronic will, or are attached to, or are
   53  logically associated with, the electronic will.
   54         (3)(a)The electronic will is deposited with the clerk
   55  before the death of the testator in accordance with s. 732.901
   56  with a certification signed by the testator confirming that the
   57  electronic will is a valid will of the testator; or
   58         (b)1. The electronic will designates a qualified custodian;
   59         and
   60         2. The qualified custodian certifies under oath that to its
   61  best knowledge the electronic will was at all times under the
   62  control of a qualified custodian before being offered to the
   63  court and that the electronic will has not be altered in any way
   64  since the date of its execution.
   65         Section 7. Section 732.525, Florida Statutes, is created to
   66  read:
   67         732.525Method and place of execution.For purposes of this
   68  act, the execution and filing of a document with the court as
   69  provided in this act or the Florida Probate Rules, the execution
   70  of a durable power of attorney under s. 709.2105, and the
   71  execution of a living will under s. 765.302:
   72         (1) An individual is deemed to be in the presence of
   73  another individual if the individuals are either:
   74         (a) In the same physical location; or
   75         (b) In different physical locations, but can communicate
   76  with each other by means of live video and audio conference,
   77  provided that a video transcript of the execution of the
   78  document is recorded and stored in, or attached to or logically
   79  associated with, the electronic record of the document.
   80         (2) Any requirement that a document be signed may be
   81  satisfied by an electronic signature.
   82         (3)A document that is signed electronically is deemed to
   83  be executed in this state if any one of the following
   84  requirements is met:
   85         (a)The person creating the document states that he or she
   86  intends to execute and understands that he or she is executing
   87  the document in, and pursuant to the laws of, this state.
   88         (b)The person creating the document is, or the attesting
   89  witnesses or Florida notary public whose electronic signatures
   90  are obtained in the execution of the document are, physically
   91  located within this state at the time the document is executed.
   92         (c)In the case of a self-proved electronic will, the
   93  electronic will designates a qualified custodian who is
   94  domiciled in and a resident of this state or incorporated or
   95  organized in this state.
   96         Section 8. Section 732.526, Florida Statutes, is created to
   97  read:
   98         732.526Probate.—An electronic will that is executed or
   99  deemed executed in another state in accordance with the laws of
  100  that state or of this state may be offered for and admitted to
  101  original probate in this state and is subject to the
  102  jurisdiction of the courts of this state. The venue for the
  103  probate of electronic wills is as provided in s. 733.101(1) or,
  104  in the case of the electronic will of a nonresident, may be the
  105  county in which the qualified custodian or attorney for the
  106  petitioner or personal representative has his or her domicile or
  107  registered office.
  108         Section 9. Section 732.527, Florida Statutes, is created to
  109  read:
  110         732.527 Qualified custodians.—
  111         (1)To serve as a qualified custodian of an electronic
  112  will, a person must:
  113         (a)Not be an heir or devisee, as defined in s. 731.201, of
  114  the testator;
  115         (b)Be domiciled in and a resident of this state or be
  116  incorporated or organized in this state;
  117         (c)Consistently employ a system for ensuring the
  118  safekeeping of electronic records and store electronic records
  119  containing electronic wills under such system; and
  120         (d)Furnish for any court hearing involving an electronic
  121  will that is currently or was previously stored by the qualified
  122  custodian any information requested by the court pertaining to
  123  the qualified custodian’s qualifications, policies, and
  124  practices related to the creation, sending, communication,
  125  receipt, maintenance, storage, and production of electronic
  126  wills.
  127         (2)The qualified custodian of an electronic will shall
  128  provide access to or information concerning the electronic will,
  129  or the electronic will and the electronic record containing the
  130  electronic will, only to the testator and such other persons as
  131  directed by the written instructions of the testator. A
  132  qualified custodian may also deposit the electronic will with
  133  the clerk by complying and in accordance with s. 732.901.
  134         (3)The qualified custodian of the electronic record of an
  135  electronic will may elect to destroy such record, including any
  136  of the documentation required to be created and stored under
  137  paragraph (1)(d), at any time after the 5th anniversary of the
  138  admission of the will of the testator to probate.
  139         (4)A qualified custodian who at any time controls the
  140  electronic record of an electronic will may elect to cease
  141  serving in such capacity by:
  142         (a)Delivering the electronic will or the electronic record
  143  containing the electronic will to the testator, if then living,
  144  or, after the death of the testator, to the personal
  145  representative;
  146         (b)Depositing the electronic will, including an
  147  acknowledgement of affidavits made in accordance with s.
  148  732.503, with the clerk after complying with s. 732.901; or
  149         (c)1. If the outgoing qualified custodian intends to
  150  designate a successor qualified custodian, providing written
  151  notice to the testator or, after the testator’s death, the
  152  testator’s nominated personal representative of the name,
  153  address, and qualifications of the proposed successor qualified
  154  custodian. The testator or a testator’s nominated personal
  155  representative must provide written consent before the
  156  electronic record, including the electronic will, is delivered
  157  to a successor qualified custodian;
  158         2.Delivering the electronic record containing the
  159  electronic will, to the successor qualified custodian; and
  160         3.Delivering to the successor qualified custodian an
  161  affidavit of the outgoing qualified custodian stating that:
  162         a.The outgoing qualified custodian is eligible to act as a
  163  qualified custodian in this state;
  164         b.The outgoing qualified custodian is the qualified
  165  custodian designated by the testator in the electronic will or
  166  appointed to act in such capacity under paragraph (4)(c);
  167         c.The electronic will has been in the control of one or
  168  more qualified custodians since the time the electronic record
  169  was created, and identifying such qualified custodians; and
  170         d.To the best of the qualified custodian’s knowledge, the
  171  electronic will has not been altered since the time it was
  172  created.
  174  For purposes of making this affidavit, the outgoing qualified
  175  custodian may rely conclusively on any affidavits delivered by a
  176  predecessor qualified custodian in connection with its
  177  designation or appointment as qualified custodian; however, all
  178  such affidavits must be delivered to the successor qualified
  179  custodian.
  180         (5)Upon the written request of the testator, a qualified
  181  custodian who at any time controls the electronic record of the
  182  testator’s electronic will must cease serving in such capacity
  183  and must deliver to a successor qualified custodian designated
  184  in writing by the testator the electronic will and the affidavit
  185  required in this subparagraph (4)(c)3.
  186         (6)A qualified custodian may not succeed to office as a
  187  qualified custodian of an electronic will unless he or she
  188  agrees in writing to serve in such capacity.
  189         (7)If a qualified custodian is an entity, an affidavit of
  190  a duly authorized officer or agent of such entity shall
  191  constitute the affidavit of the qualified custodian.
  192         (8)A qualified custodian must provide a paper copy of an
  193  electronic will and the electronic record, including the
  194  electronic will, to the testator immediately upon request. For
  195  the first such request in any 365-day period, the testator may
  196  not be charged a fee for being provided with these documents.
  197         (9)The qualified custodian shall be liable for any damages
  198  caused by the negligent loss or destruction of the electronic
  199  record, including the electronic will, while it is in the
  200  possession of the qualified custodian. A qualified custodian may
  201  not limit liability for such damages.
  202         (10)A qualified custodian may not terminate or suspend
  203  access to the electronic will by the testator.
  204         (11)Except as provided herein, a qualified custodian must
  205  at all times keep information provided by the testator
  206  confidential and may not disclose such information to any third
  207  party.
  208         Section 10. Section 733.201, Florida Statutes is amended to
  209  read:
  210         733.201 Proof of wills.—
  211         (1) Self-proved wills executed in accordance with this code
  212  may be admitted to probate without further proof.
  213         (2) A will, other than an electronic will, may be admitted
  214  to probate upon the oath of any attesting witness taken before
  215  any circuit judge, commissioner appointed by the court, or
  216  clerk.
  217         (3) If it appears to the court that the attesting witnesses
  218  cannot be found or that they have become incapacitated after the
  219  execution of the will or their testimony cannot be obtained
  220  within a reasonable time, a will, other than an electronic will,
  221  may be admitted to probate upon the oath of the personal
  222  representative nominated by the will as provided in subsection
  223  (2), whether or not the nominated personal representative is
  224  interested in the estate, or upon the oath of any person having
  225  no interest in the estate under the will stating that the person
  226  believes the writing exhibited to be the true last will of the
  227  decedent.
  228         (4)If an electronic will is not self-proved, an electronic
  229  will may be admitted to probate upon the oath of the two
  230  attesting witnesses for the electronic will taken before any
  231  circuit judge, commissioner appointed by the court, or the
  232  clerk. If it appears to the court that the attesting witnesses
  233  cannot be found, that they have become incapacitated after the
  234  execution of the electronic will, or that their testimony cannot
  235  be obtained within a reasonable time, an electronic will may be
  236  admitted to probate upon the oath of two disinterested witnesses
  237  providing all of the following information:
  238         (a)The date on which the electronic will was created, if
  239  the date is not indicated in the electronic will itself.
  240         (b)When and how the electronic will was discovered, and by
  241  whom.
  242         (c)All of the people who had access to the electronic
  243  will.
  244         (d)The method by which the electronic will was stored and
  245  the safeguards that were in place to prevent alterations to the
  246  electronic will.
  247         (e)A statement as to whether the electronic will has been
  248  altered since its creation.
  249         (f)A statement that the electronic will is a true,
  250  correct, and complete tangible manifestation of the testator’s
  251  will.
  252         (5)A paper copy of an electronic will which is a true and
  253  correct copy of the electronic will may be offered for and
  254  admitted to probate and shall constitute an “original” of the
  255  electronic will.
  256         Section 11. This act applies to electronic wills executed
  257  on or after July 1, 2017.
  258         Section 12. This act shall take effect July 1, 2017.
  260  ================= T I T L E  A M E N D M E N T ================
  261  And the title is amended as follows:
  262         Delete lines 8 - 53
  263  and insert:
  264         defining terms; creating s. 732.523, F.S.; specifying
  265         requirements that must be satisfied in the execution
  266         of electronic wills; creating s. 732.524, F.S.;
  267         providing that electronic wills may be made self
  268         proved at the time of execution; providing
  269         requirements for self-proof of electronic wills;
  270         creating s. 732.525, F.S.; specifying the
  271         circumstances under which a person is deemed to be in
  272         the presence of another; providing that an electronic
  273         signature satisfies the requirement that a document be
  274         signed; providing requirements for certain documents
  275         to be deemed executed in this state; creating s.
  276         732.526, F.S.; authorizing an electronic will that is
  277         properly executed in this or another state to be
  278         offered for and admitted to probate in this state;
  279         providing the venue for the probate of such electronic
  280         will; creating s. 732.527, F.S.; specifying
  281         requirements for service as a qualified custodian;
  282         requiring qualified custodians to provide access to or
  283         information concerning the electronic will or the
  284         electronic record containing the electronic will, only
  285         to specified persons; authorizing the qualified
  286         custodian to deposit an electronic will with the clerk
  287         of court; authorizing a qualified custodian to destroy
  288         the electronic record of an electronic will after a
  289         certain date; providing for cessation of service of a
  290         qualified custodian; requiring that a qualified
  291         custodian who elects to cease serving in such capacity
  292         provide written notice to the testator under certain
  293         circumstances; requiring a qualified custodian to
  294         deliver certain documents to specified persons when he
  295         or she ceases to serve in such capacity; requiring a
  296         qualified custodian to cease serving in such capacity
  297         under certain circumstances; requiring that a
  298         successor qualified custodian agree in writing to
  299         serve in that capacity for an electronic will before
  300         succeeding to office; specifying what constitutes an
  301         affidavit of the qualified custodian; requiring a
  302         qualified custodian to deliver certain documents upon
  303         request from a testator; providing that a qualified is
  304         liable for certain damages under certain
  305         circumstances; requiring a qualified custodian to keep
  306         certain information confidential; amending s. 733.201,
  307         F.S.; providing for the proof of electronic wills;
  308         providing requirements for admitting an electronic
  309         will that is not self-proved into probate; providing
  310         that a paper copy of an electronic will constitutes an
  311         “original” of the electronic will subject to certain
  312         conditions; providing applicability; providing an
  313         effective date.