Florida Senate - 2017 SB 206 By Senator Passidomo 28-00132A-17 2017206__ 1 A bill to be entitled 2 An act relating to electronic wills; amending s. 3 731.201, F.S.; revising the definition of the term 4 “will” to include electronic wills; amending s. 5 732.506, F.S.; excepting electronic wills from 6 revocation provisions; creating s. 732.521, F.S.; 7 providing a short title; creating s. 732.522, F.S.; 8 defining terms; creating s. 732.523, F.S.; providing a 9 statement of legislative intent and purpose; creating 10 s. 732.524, F.S.; specifying requirements that must be 11 satisfied in the preparation and execution of 12 electronic wills; providing the extent to which 13 electronic wills are subject to other statutory 14 requirements relating to execution of a will; creating 15 s. 732.525, F.S.; providing that electronic wills may 16 be made self-proved at the time of execution; 17 providing requirements for self-proof of electronic 18 wills; requiring a qualified custodian to store an 19 electronic will in an electronic record; creating s. 20 732.526, F.S.; specifying the circumstances under 21 which a person is deemed to be in the presence of 22 another; providing requirements for certain documents 23 to be deemed executed in this state; creating s. 24 732.527, F.S.; authorizing an electronic will that is 25 properly executed in this or another state, or a 26 certified paper original of such properly executed 27 electronic will, to be offered for and admitted to 28 probate in this state; providing the venue for the 29 probate of such electronic wills or certified paper 30 originals; providing that a certified paper original 31 of a self-proved electronic will is presumed to be 32 valid; creating s. 732.528, F.S.; specifying 33 requirements for service as a qualified custodian; 34 requiring qualified custodians to provide access to, 35 information concerning, or the certified paper 36 original of the electronic will only to specified 37 persons; authorizing a qualified custodian to destroy 38 an electronic record subject to specified conditions; 39 providing for cessation of service of a qualified 40 custodian; requiring that a qualified custodian who 41 elects to cease serving in such capacity provide 42 written notice to the testator; requiring a qualified 43 custodian to deliver certain documents to specified 44 persons when he or she ceases to serve in such 45 capacity; requiring that a successor qualified 46 custodian agree in writing to serve in that capacity 47 for an electronic will before succeeding to office; 48 creating s. 732.529, F.S.; providing that a certified 49 paper original must be delivered to specified persons 50 with an affidavit of the qualified custodian or the 51 persons who discovered the electronic will and reduced 52 it to paper; providing requirements for such 53 affidavits; providing an effective date. 54 55 Be It Enacted by the Legislature of the State of Florida: 56 57 Section 1. Subsection (40) of section 731.201, Florida 58 Statutes, is amended to read: 59 731.201 General definitions.—Subject to additional 60 definitions in subsequent chapters that are applicable to 61 specific chapters or parts, and unless the context otherwise 62 requires, in this code, in s. 409.9101, and in chapters 736, 63 738, 739, and 744, the term: 64 (40) “Will” means an instrument, including a codicil, 65 executed by a person in the manner prescribed by this code, 66 which disposes of the person’s property on or after his or her 67 death and includes an instrument which merely appoints a 68 personal representative or revokes or revises another will. The 69 term “will” includes an electronic will as defined in s. 70 732.522. 71 Section 2. Section 732.506, Florida Statutes, is amended to 72 read: 73 732.506 Revocation by act.—A will or codicil, other than an 74 electronic will, is revoked by the testator, or some other 75 person in the testator’s presence and at the testator’s 76 direction, by burning, tearing, canceling, defacing, 77 obliterating, or destroying it with the intent, and for the 78 purpose, of revocation. 79 Section 3. Section 732.521, Florida Statutes, is created to 80 read: 81 732.521 Short title.—Sections 732.521-732.529 may be cited 82 as the “Florida Electronic Wills Act.” 83 Section 4. Section 732.522, Florida Statutes, is created to 84 read: 85 732.522 Definitions.—As used in ss. 732.521-732.529, the 86 term: 87 (1) “Certified paper original” means a tangible document 88 that contains the text of an electronic will, including a self 89 proving affidavit concerning that will if applicable. 90 (2) “Electronic record” means a record created, generated, 91 sent, communicated, received, or stored by electronic means. 92 (3) “Electronic signature” means an electronic sound, 93 symbol, or process attached to or logically associated with a 94 record and executed or adopted by a person with the intent to 95 sign the record. 96 (4) “Electronic will” means an instrument, including a 97 codicil, executed by a person in the manner prescribed by this 98 act which disposes of the person’s property on or after his or 99 her death and includes an instrument that merely appoints a 100 personal representative or revokes or revises another will or 101 electronic will. 102 (5) “Qualified custodian” means a person who meets the 103 requirements of s. 732.528(1). 104 Section 5. Section 732.523, Florida Statutes, is created to 105 read: 106 732.523 Statement of legislative intent and purpose.—The 107 Legislature intends that this act be liberally construed and 108 applied to promote the following purposes and policies: 109 (1) To facilitate and expand access to individuals’ right 110 to testamentary freedom of disposition. 111 (2) To facilitate end-of-life planning for individuals and 112 families, particularly members of vulnerable or marginalized 113 groups and those for whom end-of-life planning services are 114 often unaffordable, unavailable, or otherwise inaccessible. 115 (3) To facilitate the use and enforcement of established 116 and widely used technology in memorializing and accomplishing 117 the intent and wishes of a decedent with regard to the 118 distribution of his or her real and personal property. 119 (4) To simplify and clarify the law concerning the affairs 120 of decedents. 121 (5) To discover and make effective the intent of a decedent 122 with respect to the distribution of his or her real and personal 123 property. 124 (6) To promote a speedy and efficient system for the 125 settlement and distribution of estates. 126 (7) To harmonize the law of wills with other laws that 127 recognize the legal and functional equivalence of electronic and 128 paper signatures and transactions. 129 Section 6. Section 732.524, Florida Statutes, is created to 130 read: 131 732.524 Electronic wills.—Notwithstanding s. 732.502: 132 (1) An electronic will must: 133 (a) Exist in an electronic record. 134 (b) Be electronically signed by the testator in the 135 presence of either a notary public or at least two attesting 136 witnesses. 137 (c) Be electronically signed by the notary public or both 138 of the attesting witnesses in the presence of the testator and, 139 in the case of the witnesses, in the presence of each other. If 140 it is electronically signed by a notary public, the signature 141 must be accompanied by a notary public seal that meets the 142 requirements of s. 117.021(3). 143 (2) Except as otherwise provided in this act, all questions 144 as to the force, effect, validity, and interpretation of an 145 electronic will that complies with this section must be 146 determined in the same manner as in the case of a will formally 147 executed in accordance with s. 732.502. 148 Section 7. Section 732.525, Florida Statutes, is created to 149 read: 150 732.525 Self-proof of electronic will.—An attested 151 electronic will is self-proved if all of the following 152 requirements are met: 153 (1) The acknowledgment of the electronic will by the 154 testator and the affidavits of the witnesses must be made in 155 accordance with s. 732.503 and included in the electronic 156 record. 157 (2) The electronic will must designate a qualified 158 custodian to control the electronic record of the electronic 159 will. 160 (3) The electronic will at all times must have been under 161 the control of a qualified custodian before being reduced to the 162 certified paper original that is sought to be probated. 163 Section 8. Section 732.526, Florida Statutes, is created to 164 read: 165 732.526 Method and place of execution.—For purposes of this 166 act, the execution and filing of a document with the court as 167 provided in this act or the Florida Probate Rules, and the 168 execution of a durable power of attorney under s. 709.2105 and a 169 living will under s. 765.302: 170 (1) An individual is deemed to be in the presence of 171 another individual if the individuals are either: 172 (a) In the same physical location; or 173 (b) In different physical locations, but can communicate 174 with each other by means of live video and audio conference. 175 (2) Any requirement that a document be signed may be 176 satisfied by an electronic signature. 177 (3) A document is deemed to be executed in this state if 178 all of the following requirements are met: 179 (a) The document states that the person creating the 180 document intends to execute and understands that he or she is 181 executing the document in, and pursuant to the laws of, this 182 state. 183 (b) The document provides that its validity, 184 interpretation, and effect are governed by the laws of this 185 state. 186 (c) The attesting witnesses or Florida notary public whose 187 electronic signatures are obtained in the execution of the 188 document are physically located within this state at the time 189 the document is executed. 190 (d) In the case of an electronic will, the electronic will 191 designates a qualified custodian. 192 Section 9. Section 732.527, Florida Statutes, is created to 193 read: 194 732.527 Probate.— 195 (1) An electronic will that is executed or deemed executed 196 in another state in accordance with the laws of that state or of 197 this state may be offered for and admitted to original probate 198 in this state and is subject to the jurisdiction of the courts 199 of this state. The venue for the probate of electronic wills is 200 as provided in s. 733.101(1) or, in the case of the electronic 201 will of a nonresident, may be the county in which the qualified 202 custodian or attorney for the petitioner or personal 203 representative has his or her domicile or registered office. 204 (2) A certified paper original of the electronic will may 205 be offered for and admitted to probate. 206 (3) A certified paper original of a self-proved electronic 207 will is presumed to be valid. 208 Section 10. Section 732.528, Florida Statutes, is created 209 to read: 210 732.528 Qualified custodians.— 211 (1) To serve as a qualified custodian of an electronic 212 will, a person must: 213 (a) Not be an heir or devisee, as defined in s. 731.201, of 214 the testator. 215 (b) Be domiciled in and a resident of this state or be 216 incorporated or organized in this state. 217 (c) Consistently employ a system for ensuring the 218 safekeeping of electronic records. 219 (d) Create and store in the electronic record of any given 220 electronic will all of the following concerning such electronic 221 will: 222 1. A photograph or other visual record of the testator and 223 the attesting witnesses, if any, taken by the qualified 224 custodian at the time the electronic will is executed. 225 2. A photocopy, photograph, facsimile, or other visual 226 record of a document provided to the qualified custodian at the 227 time the electronic will is executed which establishes the 228 testator’s identity, including without limitation any of the 229 forms of identification set forth in s. 117.05(5)(b)2.a.-i. 230 3. If there are attesting witnesses to the electronic will, 231 a photocopy, photograph, facsimile, or other visual record of a 232 document provided by the qualified custodian at the time the 233 electronic will is executed which provides reasonable proof of 234 each attesting witness’ identity, including any of the forms of 235 identification specified in s. 117.05(5)(b)2.a.-i. 236 4. An audio and video recording of the testator and the 237 attesting witnesses or notary public electronically signing the 238 electronic will as provided in s. 732.524(1)(c). 239 (e) Furnish for any court hearing involving an electronic 240 will that is currently or was previously stored by the qualified 241 custodian any information requested by the court pertaining to 242 the qualified custodian’s qualifications, policies, and 243 practices related to the creation, sending, communication, 244 receipt, maintenance, storage, and production of electronic 245 wills. 246 (2) The qualified custodian of an electronic will shall 247 provide access to, information concerning, or the certified 248 paper original of the electronic will only to the testator and 249 such other persons as directed by the written instructions of 250 the testator, and, after the testator’s death, any interested 251 person, upon request. 252 (3) The qualified custodian of the electronic record of an 253 electronic will may elect to destroy such record, including any 254 of the documentation required to be created and stored under 255 paragraph (1)(d), at any time after: 256 (a) The 5th anniversary of the admission of the will of the 257 testator to probate. 258 (b) The 10th anniversary of the testator’s death. 259 (c) The 100th anniversary of the execution of the 260 electronic will. 261 (4) A qualified custodian who at any time controls the 262 electronic record of an electronic will may elect to cease 263 serving in such capacity by: 264 (a)1. If the outgoing qualified custodian is not 265 designating a successor qualified custodian, providing 30 days’ 266 written notice to the testator, if then living, or, after the 267 death of the testator, to the testator’s duly appointed personal 268 representative or an interested person that he or she has 269 elected to cease serving as a qualified custodian; and 270 2. Delivering the certified paper original of, and all 271 records concerning, the electronic will to the testator, if then 272 living, or, after the death of the testator, to the personal 273 representative or such interested person; or 274 (b)1. If the outgoing qualified custodian is designating a 275 successor qualified custodian, providing 30 days’ written notice 276 to the testator’s duly appointed personal representative and to 277 a successor qualified custodian designated by the outgoing 278 qualified custodian that the outgoing qualified custodian of the 279 electronic will has elected to cease serving in such capacity to 280 the testator, if then living, or, after the death of the 281 testator; 282 2. Delivering the electronic record of the electronic will 283 to the successor qualified custodian; and 284 3. Delivering to the successor qualified custodian an 285 affidavit of the outgoing qualified custodian stating that: 286 a. The outgoing qualified custodian is eligible to act as a 287 qualified custodian in this state; 288 b. The outgoing qualified custodian is the qualified 289 custodian designated by the testator in the electronic will or 290 appointed to act in such capacity under paragraph (4)(b); 291 c. An electronic record was created at the time the 292 testator made the electronic will; 293 d. The electronic record has been in the control of one or 294 more qualified custodians since the time the electronic record 295 was created, and identifying such qualified custodians; and 296 e. To the best of his, her, or its knowledge, the 297 electronic record has not been altered since the time it was 298 created. 299 300 For purposes of making this affidavit, the outgoing qualified 301 custodian may rely conclusively on any affidavits delivered by a 302 predecessor qualified custodian in connection with his or her 303 designation or appointment as qualified custodian; however, all 304 such affidavits must be delivered to the successor qualified 305 custodian. 306 (5) Upon the written request of the testator, a qualified 307 custodian who at any time controls the electronic record of the 308 testator’s electronic will must cease serving in such capacity 309 and must deliver to a successor qualified custodian designated 310 in writing by the testator the electronic record and the 311 affidavit required in subparagraph (4)(b)3. 312 (6) A qualified custodian may not succeed to office as a 313 qualified custodian of an electronic will unless he or she 314 agrees in writing to serve in such capacity. 315 (7) If a qualified custodian is an entity, an affidavit of 316 a duly authorized officer or agent of such entity shall 317 constitute the affidavit of the qualified custodian. 318 Section 11. Section 732.529, Florida Statutes, is created 319 to read: 320 732.529 Affidavit for certified paper original.—A certified 321 paper original delivered under s. 732.527(2) must be accompanied 322 by an affidavit that satisfies the following requirements: 323 (1) If the electronic will has always been under the 324 control of a qualified custodian, the qualified custodian shall 325 state in an affidavit that: 326 (a) The qualified custodian is eligible to act as a 327 qualified custodian in this state; 328 (b) The qualified custodian is the qualified custodian 329 designated by the testator in the electronic will or appointed 330 to act in such capacity under s. 732.528(4)(b); 331 (c) An electronic record was created at the time the 332 testator made the electronic will; 333 (d) The electronic record has been in the control of one or 334 more qualified custodians since its creation, and the identity 335 of such qualified custodians; 336 (e) To the best of his, her, or its knowledge, the 337 electronic record has not been altered since its creation; 338 (f) The certified paper original is a true, correct, and 339 complete tangible manifestation of the electronic will; and 340 (g) The qualified custodian has in its custody the records 341 required under s. 732.528(1)(d). 342 (2) If the electronic will has not always been under the 343 control of a qualified custodian, the person who discovered the 344 electronic will and the person who reduced the electronic will 345 to paper shall each state in an affidavit to the best of their 346 knowledge: 347 (a) When the electronic will was created, if not indicated 348 in the electronic will itself; 349 (b) When and how the electronic will was discovered, and by 350 whom; 351 (c) All of the people who had access to the electronic 352 will; 353 (d) The method in which the electronic will was stored and 354 what safeguards were in place to prevent alterations to the 355 electronic will; 356 (e) Whether the electronic will has been altered since its 357 creation; and 358 (f) That the certified paper original is a true, correct, 359 and complete tangible manifestation of the electronic will. 360 Section 12. This act shall take effect July 1, 2017.