Florida Senate - 2017                              CS for SB 206
       By the Committee on Judiciary; and Senator Passidomo
       590-00962-17                                           2017206c1
    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.; specifying
    9         requirements that must be satisfied in the execution
   10         of electronic wills; creating s. 732.524, F.S.;
   11         providing that electronic wills may be made self
   12         proved at the time of execution; providing
   13         requirements for self-proof of electronic wills;
   14         creating s. 732.525, F.S.; specifying the
   15         circumstances under which a person is deemed to be in
   16         the presence of another; providing that an electronic
   17         signature satisfies the requirement that a document be
   18         signed; providing requirements for certain documents
   19         to be deemed executed in this state; creating s.
   20         732.526, F.S.; authorizing an electronic will that is
   21         properly executed in this or another state to be
   22         offered for and admitted to probate in this state;
   23         providing the venue for the probate of such electronic
   24         will; creating s. 732.527, F.S.; specifying
   25         requirements for service as a qualified custodian;
   26         requiring qualified custodians to provide access to or
   27         information concerning the electronic will or the
   28         electronic record containing the electronic will, only
   29         to specified persons; authorizing the qualified
   30         custodian to deposit an electronic will with the clerk
   31         of court; authorizing a qualified custodian to destroy
   32         the electronic record of an electronic will after a
   33         certain date; providing for cessation of service of a
   34         qualified custodian; requiring that a qualified
   35         custodian who elects to cease serving in such capacity
   36         provide written notice to the testator under certain
   37         circumstances; requiring a qualified custodian to
   38         deliver certain documents to specified persons when he
   39         or she ceases to serve in such capacity; requiring a
   40         qualified custodian to cease serving in such capacity
   41         under certain circumstances; requiring that a
   42         successor qualified custodian agree in writing to
   43         serve in that capacity for an electronic will before
   44         succeeding to office; specifying what constitutes an
   45         affidavit of the qualified custodian; requiring a
   46         qualified custodian to deliver certain documents upon
   47         request from a testator; providing that a qualified is
   48         liable for certain damages under certain
   49         circumstances; requiring a qualified custodian to keep
   50         certain information confidential; amending s. 733.201,
   51         F.S.; providing for the proof of electronic wills;
   52         providing requirements for admitting an electronic
   53         will that is not self-proved into probate; providing
   54         that a paper copy of an electronic will constitutes an
   55         “original” of the electronic will subject to certain
   56         conditions; providing applicability; providing an
   57         effective date.
   59  Be It Enacted by the Legislature of the State of Florida:
   61         Section 1. Subsection (40) of section 731.201, Florida
   62  Statutes, is amended to read:
   63         731.201 General definitions.—Subject to additional
   64  definitions in subsequent chapters that are applicable to
   65  specific chapters or parts, and unless the context otherwise
   66  requires, in this code, in s. 409.9101, and in chapters 736,
   67  738, 739, and 744, the term:
   68         (40) “Will” means an instrument, including a codicil,
   69  executed by a person in the manner prescribed by this code,
   70  which disposes of the person’s property on or after his or her
   71  death and includes an instrument which merely appoints a
   72  personal representative or revokes or revises another will. The
   73  term “will” includes an electronic will as defined in s.
   74  732.522.
   75         Section 2. Section 732.506, Florida Statutes, is amended to
   76  read:
   77         732.506 Revocation by act.—A will or codicil, other than an
   78  electronic will, is revoked by the testator, or some other
   79  person in the testator’s presence and at the testator’s
   80  direction, by burning, tearing, canceling, defacing,
   81  obliterating, or destroying it with the intent, and for the
   82  purpose, of revocation.
   83         Section 3. Section 732.521, Florida Statutes, is created to
   84  read:
   85         732.521 Short title.—Sections 732.521-732.527 may be cited
   86  as the “Florida Electronic Wills Act.”
   87         Section 4. Section 732.522, Florida Statutes, is created to
   88  read:
   89         732.522 Definitions.—As used in ss. 732.521-732.527, the
   90  term:
   91         (1) “Electronic record” means a record created, generated,
   92  sent, communicated, received, or stored by electronic means.
   93         (2) “Electronic signature” means an electronic sound,
   94  symbol, or process attached to or logically associated with a
   95  record and executed or adopted by a person with the intent to
   96  sign the record.
   97         (3) “Electronic will” means a will, including a codicil,
   98  executed in accordance with s. 732.523 by a person in the manner
   99  prescribed by this act, which disposes of the person’s property
  100  on or after his or her death and includes an instrument that
  101  appoints a personal representative or revokes or revises another
  102  will or electronic will.
  103         (4) “Qualified custodian” means a person who meets the
  104  requirements of s. 732.527(1).
  105         Section 5. Section 732.523, Florida Statutes, is created to
  106  read:
  107         732.523Electronic wills.—Notwithstanding s. 732.502:
  108         (1)An electronic will must:
  109         (a)Exist in an electronic record.
  110         (b)Be electronically signed by the testator in the
  111  presence of a notary public who is, or at least two attesting
  112  witnesses who are, in the same room as the testator.
  113         (c)Be electronically signed by the notary public and the
  114  two attesting witnesses in the presence of the testator and, in
  115  the case of the witnesses, in the presence of each other. The
  116  notary public’s signature must be accompanied by a notary public
  117  seal that meets the requirements of s. 117.021(3).
  118         (2)Except as otherwise provided in this act, all questions
  119  as to the force, effect, validity, and interpretation of an
  120  electronic will that complies with this section must be
  121  determined in the same manner as in the case of a will executed
  122  in accordance with s. 732.502.
  123         Section 6. Section 732.524, Florida Statutes, is created to
  124  read:
  125         732.524 Self-proof of electronic will.—An electronic will
  126  is self-proved if all of the following requirements are met:
  127         (1)The electronic will is executed in conformity with this
  128  act.
  129         (2)The acknowledgment of the electronic will by the
  130  testator and the affidavits of the witnesses are made in
  131  accordance with s. 732.503 and are part of the electronic record
  132  containing the electronic will, or are attached to, or are
  133  logically associated with, the electronic will.
  134         (3)(a)The electronic will is deposited with the clerk
  135  before the death of the testator in accordance with s. 732.901
  136  with a certification signed by the testator confirming that the
  137  electronic will is a valid will of the testator; or
  138         (b)1. The electronic will designates a qualified custodian;
  139         and
  140         2. The qualified custodian certifies under oath that to its
  141  best knowledge the electronic will was at all times under the
  142  control of a qualified custodian before being offered to the
  143  court and that the electronic will has not be altered in any way
  144  since the date of its execution.
  145         Section 7. Section 732.525, Florida Statutes, is created to
  146  read:
  147         732.525Method and place of execution.For purposes of this
  148  act, the execution and filing of a document with the court as
  149  provided in this act or the Florida Probate Rules, the execution
  150  of a durable power of attorney under s. 709.2105, and the
  151  execution of a living will under s. 765.302:
  152         (1) An individual is deemed to be in the presence of
  153  another individual if the individuals are either:
  154         (a) In the same physical location; or
  155         (b) In different physical locations, but can communicate
  156  with each other by means of live video and audio conference,
  157  provided that a video transcript of the execution of the
  158  document is recorded and stored in, or attached to or logically
  159  associated with, the electronic record of the document.
  160         (2) Any requirement that a document be signed may be
  161  satisfied by an electronic signature.
  162         (3)A document that is signed electronically is deemed to
  163  be executed in this state if any one of the following
  164  requirements is met:
  165         (a)The person creating the document states that he or she
  166  intends to execute and understands that he or she is executing
  167  the document in, and pursuant to the laws of, this state.
  168         (b)The person creating the document is, or the attesting
  169  witnesses or Florida notary public whose electronic signatures
  170  are obtained in the execution of the document are, physically
  171  located within this state at the time the document is executed.
  172         (c)In the case of a self-proved electronic will, the
  173  electronic will designates a qualified custodian who is
  174  domiciled in and a resident of this state or incorporated or
  175  organized in this state.
  176         Section 8. Section 732.526, Florida Statutes, is created to
  177  read:
  178         732.526Probate.—An electronic will that is executed or
  179  deemed executed in another state in accordance with the laws of
  180  that state or of this state may be offered for and admitted to
  181  original probate in this state and is subject to the
  182  jurisdiction of the courts of this state. The venue for the
  183  probate of electronic wills is as provided in s. 733.101(1) or,
  184  in the case of the electronic will of a nonresident, may be the
  185  county in which the qualified custodian or attorney for the
  186  petitioner or personal representative has his or her domicile or
  187  registered office.
  188         Section 9. Section 732.527, Florida Statutes, is created to
  189  read:
  190         732.527 Qualified custodians.—
  191         (1)To serve as a qualified custodian of an electronic
  192  will, a person must:
  193         (a)Not be an heir or devisee, as defined in s. 731.201, of
  194  the testator;
  195         (b)Be domiciled in and a resident of this state or be
  196  incorporated or organized in this state;
  197         (c)Consistently employ a system for ensuring the
  198  safekeeping of electronic records and store electronic records
  199  containing electronic wills under such system; and
  200         (d)Furnish for any court hearing involving an electronic
  201  will that is currently or was previously stored by the qualified
  202  custodian any information requested by the court pertaining to
  203  the qualified custodian’s qualifications, policies, and
  204  practices related to the creation, sending, communication,
  205  receipt, maintenance, storage, and production of electronic
  206  wills.
  207         (2)The qualified custodian of an electronic will shall
  208  provide access to or information concerning the electronic will,
  209  or the electronic will and the electronic record containing the
  210  electronic will, only to the testator and such other persons as
  211  directed by the written instructions of the testator. A
  212  qualified custodian may also deposit the electronic will with
  213  the clerk by complying and in accordance with s. 732.901.
  214         (3)The qualified custodian of the electronic record of an
  215  electronic will may elect to destroy such record, including any
  216  of the documentation required to be created and stored under
  217  paragraph (1)(d), at any time after the 5th anniversary of the
  218  admission of the will of the testator to probate.
  219         (4)A qualified custodian who at any time controls the
  220  electronic record of an electronic will may elect to cease
  221  serving in such capacity by:
  222         (a)Delivering the electronic will or the electronic record
  223  containing the electronic will to the testator, if then living,
  224  or, after the death of the testator, to the personal
  225  representative;
  226         (b)Depositing the electronic will, including an
  227  acknowledgement of affidavits made in accordance with s.
  228  732.503, with the clerk after complying with s. 732.901; or
  229         (c)1. If the outgoing qualified custodian intends to
  230  designate a successor qualified custodian, providing written
  231  notice to the testator or, after the testator’s death, the
  232  testator’s nominated personal representative of the name,
  233  address, and qualifications of the proposed successor qualified
  234  custodian. The testator or a testator’s nominated personal
  235  representative must provide written consent before the
  236  electronic record, including the electronic will, is delivered
  237  to a successor qualified custodian;
  238         2.Delivering the electronic record containing the
  239  electronic will, to the successor qualified custodian; and
  240         3.Delivering to the successor qualified custodian an
  241  affidavit of the outgoing qualified custodian stating that:
  242         a.The outgoing qualified custodian is eligible to act as a
  243  qualified custodian in this state;
  244         b.The outgoing qualified custodian is the qualified
  245  custodian designated by the testator in the electronic will or
  246  appointed to act in such capacity under paragraph (4)(c);
  247         c.The electronic will has been in the control of one or
  248  more qualified custodians since the time the electronic record
  249  was created, and identifying such qualified custodians; and
  250         d.To the best of the qualified custodian’s knowledge, the
  251  electronic will has not been altered since the time it was
  252  created.
  254  For purposes of making this affidavit, the outgoing qualified
  255  custodian may rely conclusively on any affidavits delivered by a
  256  predecessor qualified custodian in connection with its
  257  designation or appointment as qualified custodian; however, all
  258  such affidavits must be delivered to the successor qualified
  259  custodian.
  260         (5)Upon the written request of the testator, a qualified
  261  custodian who at any time controls the electronic record of the
  262  testator’s electronic will must cease serving in such capacity
  263  and must deliver to a successor qualified custodian designated
  264  in writing by the testator the electronic will and the affidavit
  265  required in this subparagraph (4)(c)3.
  266         (6)A qualified custodian may not succeed to office as a
  267  qualified custodian of an electronic will unless he or she
  268  agrees in writing to serve in such capacity.
  269         (7)If a qualified custodian is an entity, an affidavit of
  270  a duly authorized officer or agent of such entity shall
  271  constitute the affidavit of the qualified custodian.
  272         (8)A qualified custodian must provide a paper copy of an
  273  electronic will and the electronic record, including the
  274  electronic will, to the testator immediately upon request. For
  275  the first such request in any 365-day period, the testator may
  276  not be charged a fee for being provided with these documents.
  277         (9)The qualified custodian shall be liable for any damages
  278  caused by the negligent loss or destruction of the electronic
  279  record, including the electronic will, while it is in the
  280  possession of the qualified custodian. A qualified custodian may
  281  not limit liability for such damages.
  282         (10)A qualified custodian may not terminate or suspend
  283  access to the electronic will by the testator.
  284         (11)Except as provided herein, a qualified custodian must
  285  at all times keep information provided by the testator
  286  confidential and may not disclose such information to any third
  287  party.
  288         Section 10. Section 733.201, Florida Statutes is amended to
  289  read:
  290         733.201 Proof of wills.—
  291         (1) Self-proved wills executed in accordance with this code
  292  may be admitted to probate without further proof.
  293         (2) A will, other than an electronic will, may be admitted
  294  to probate upon the oath of any attesting witness taken before
  295  any circuit judge, commissioner appointed by the court, or
  296  clerk.
  297         (3) If it appears to the court that the attesting witnesses
  298  cannot be found or that they have become incapacitated after the
  299  execution of the will or their testimony cannot be obtained
  300  within a reasonable time, a will, other than an electronic will,
  301  may be admitted to probate upon the oath of the personal
  302  representative nominated by the will as provided in subsection
  303  (2), whether or not the nominated personal representative is
  304  interested in the estate, or upon the oath of any person having
  305  no interest in the estate under the will stating that the person
  306  believes the writing exhibited to be the true last will of the
  307  decedent.
  308         (4)If an electronic will is not self-proved, an electronic
  309  will may be admitted to probate upon the oath of the two
  310  attesting witnesses for the electronic will taken before any
  311  circuit judge, commissioner appointed by the court, or the
  312  clerk. If it appears to the court that the attesting witnesses
  313  cannot be found, that they have become incapacitated after the
  314  execution of the electronic will, or that their testimony cannot
  315  be obtained within a reasonable time, an electronic will may be
  316  admitted to probate upon the oath of two disinterested witnesses
  317  providing all of the following information:
  318         (a)The date on which the electronic will was created, if
  319  the date is not indicated in the electronic will itself.
  320         (b)When and how the electronic will was discovered, and by
  321  whom.
  322         (c)All of the people who had access to the electronic
  323  will.
  324         (d)The method by which the electronic will was stored and
  325  the safeguards that were in place to prevent alterations to the
  326  electronic will.
  327         (e)A statement as to whether the electronic will has been
  328  altered since its creation.
  329         (f)A statement that the electronic will is a true,
  330  correct, and complete tangible manifestation of the testator’s
  331  will.
  332         (5)A paper copy of an electronic will which is a true and
  333  correct copy of the electronic will may be offered for and
  334  admitted to probate and shall constitute an “original” of the
  335  electronic will.
  336         Section 11. This act applies to electronic wills executed
  337  on or after July 1, 2017.
  338         Section 12. This act shall take effect July 1, 2017.