Florida Senate - 2017                       CS for CS for SB 206
       
       
        
       By the Committees on Banking and Insurance; and Judiciary; and
       Senator Passidomo
       
       
       
       
       597-03982-17                                           2017206c2
    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.; excluding electronic wills from
    6         specified methods to revoke a will; creating s.
    7         732.521, F.S.; providing a short title; creating s.
    8         732.522, F.S.; defining terms; creating s. 732.523,
    9         F.S.; specifying requirements that must be satisfied
   10         in the execution of electronic wills; creating s.
   11         732.524, F.S.; providing requirements for self-proof
   12         of electronic wills; creating s. 732.525, F.S.;
   13         specifying the circumstances under which a person is
   14         deemed to be in the presence of or appearing before
   15         another person; providing that an electronic record
   16         satisfies the requirement that a record be in writing;
   17         providing that an electronic signature satisfies the
   18         requirement that a document be signed; providing
   19         requirements for certain documents to be deemed
   20         executed in this state; creating s. 732.526, F.S.;
   21         authorizing an electronic will of a nonresident of
   22         this state which is properly executed in this or
   23         another state to be offered for and admitted to
   24         probate in this state; providing the venue for the
   25         probate of such electronic will; creating s. 732.527,
   26         F.S.; specifying requirements for service as a
   27         qualified custodian; requiring qualified custodians to
   28         provide access to or information concerning the
   29         electronic will, or the electronic record containing
   30         the electronic will, only to specified persons or as
   31         directed by a court; authorizing a qualified custodian
   32         to destroy the electronic record of an electronic will
   33         after a certain date; providing conditions under which
   34         a qualified custodian may cease serving as a qualified
   35         custodian; requiring a qualified custodian to cease
   36         serving in such capacity upon the written request of
   37         the testator; requiring that a successor qualified
   38         custodian agree in writing to serve in that capacity
   39         for an electronic will before succeeding to office;
   40         specifying what constitutes an affidavit of a
   41         qualified custodian; requiring a qualified custodian
   42         to deliver certain documents upon request from the
   43         testator; prohibiting a qualified custodian from
   44         charging the testator a fee for such documents under
   45         certain circumstances; providing that a qualified
   46         custodian is liable for certain damages under certain
   47         circumstances; prohibiting a qualified custodian from
   48         terminating or suspending access to, or downloads of,
   49         an electronic will by the testator; requiring a
   50         qualified custodian to deposit an electronic will with
   51         the court upon receiving information that the testator
   52         is dead; prohibiting a qualified custodian from
   53         charging a fee for certain actions taken upon the
   54         death of the testator; requiring a qualified custodian
   55         to keep certain information confidential; amending s.
   56         733.201, F.S.; providing for the proof of electronic
   57         wills; providing requirements for admitting an
   58         electronic will that is not self-proved into probate;
   59         providing that a paper copy of an electronic will
   60         constitutes an “original” of the electronic will
   61         subject to certain conditions; amending s. 736.0403,
   62         F.S.; providing that, for purposes of establishing the
   63         validity of the testamentary aspects of a revocable
   64         trust, the qualified custodian of the trust instrument
   65         may not also be a trustee of the trust; providing
   66         applicability; providing an effective date.
   67          
   68  Be It Enacted by the Legislature of the State of Florida:
   69  
   70         Section 1. Subsection (40) of section 731.201, Florida
   71  Statutes, is amended to read:
   72         731.201 General definitions.—Subject to additional
   73  definitions in subsequent chapters that are applicable to
   74  specific chapters or parts, and unless the context otherwise
   75  requires, in this code, in s. 409.9101, and in chapters 736,
   76  738, 739, and 744, the term:
   77         (40) “Will” means an instrument, including a codicil,
   78  executed by a person in the manner prescribed by this code,
   79  which disposes of the person’s property on or after his or her
   80  death and includes an instrument which merely appoints a
   81  personal representative or revokes or revises another will. The
   82  term “will” includes an electronic will as defined in s.
   83  732.522.
   84         Section 2. Section 732.506, Florida Statutes, is amended to
   85  read:
   86         732.506 Revocation by act.—A will or codicil, other than an
   87  electronic will, is revoked by the testator, or some other
   88  person in the testator’s presence and at the testator’s
   89  direction, by burning, tearing, canceling, defacing,
   90  obliterating, or destroying it with the intent, and for the
   91  purpose, of revocation.
   92         Section 3. Section 732.521, Florida Statutes, is created to
   93  read:
   94         732.521 Short title.—Sections 732.521-732.527 may be cited
   95  as the “Florida Electronic Wills Act.”
   96         Section 4. Section 732.522, Florida Statutes, is created to
   97  read:
   98         732.522 Definitions.—As used in ss. 732.521-732.527, the
   99  term:
  100         (1) “Electronic record” means a record created, generated,
  101  sent, communicated, received, or stored by electronic means.
  102         (2) “Electronic signature” means an electronic mark visibly
  103  manifested in a record as a signature and executed or adopted by
  104  a person with the intent to sign the record.
  105         (3) “Electronic will” means a will, including a codicil,
  106  executed in accordance with s. 732.523 by a person in the manner
  107  prescribed by this act, which disposes of the person’s property
  108  on or after his or her death and includes an instrument that
  109  appoints a personal representative or revokes or revises another
  110  will or electronic will.
  111         (4) “Qualified custodian” means a person who meets the
  112  requirements of s. 732.527(1).
  113         Section 5. Section 732.523, Florida Statutes, is created to
  114  read:
  115         732.523Electronic wills.—Notwithstanding s. 732.502:
  116         (1)An electronic will must meet all of the following
  117  requirements:
  118         (a)Exist in an electronic record that is unique and
  119  identifiable.
  120         (b)Be electronically signed by the testator in the
  121  presence of at least two attesting witnesses.
  122         (c)Be electronically signed by the attesting witnesses in
  123  the presence of the testator and in the presence of each other.
  124         (2)Except as otherwise provided in this act, all questions
  125  as to the force, effect, validity, and interpretation of an
  126  electronic will that complies with this section must be
  127  determined in the same manner as in the case of a will executed
  128  in accordance with s. 732.502.
  129         Section 6. Section 732.524, Florida Statutes, is created to
  130  read:
  131         732.524 Self-proof of electronic will.—An electronic will
  132  is self-proved if all of the following requirements are met:
  133         (1)The electronic will is executed in conformity with this
  134  act.
  135         (2)The acknowledgment of the electronic will by the
  136  testator and the affidavits of the witnesses are made in
  137  accordance with s. 732.503 and are part of the electronic record
  138  containing the electronic will, or are attached to, or are
  139  logically associated with, the electronic will.
  140         (3)(a)The electronic will designates a qualified
  141  custodian;
  142         (b) The electronic record that contains the electronic will
  143  is held in the custody of a qualified custodian at all times
  144  before being offered to the court for probate; and
  145         (c) The qualified custodian who has custody of the
  146  electronic will at the time of the testator’s death:
  147         1. Certifies under oath that, to the best knowledge of the
  148  qualified custodian, the electronic record that contains the
  149  electronic will was at all times before being offered to the
  150  court in the custody of a qualified custodian in compliance with
  151  s. 732.527 and that the electronic will has not been altered in
  152  any way since the date of its execution; and
  153         2. If the execution of the electronic will included the use
  154  of video conference under s. 732.525(1)(b), certifies under oath
  155  that the audio and video recording required under s.
  156  732.525(1)(b)9. is in the qualified custodian’s custody in the
  157  electronic record that contains the electronic will and is
  158  available for inspection by the court.
  159         Section 7. Section 732.525, Florida Statutes, is created to
  160  read:
  161         732.525Method and place of execution.—For purposes of this
  162  act, the execution and filing of a document with the court as
  163  provided in this act or the Florida Probate Rules, the execution
  164  of a durable power of attorney under s. 709.2105, and the
  165  execution of a living will under s. 765.302:
  166         (1) An individual is deemed to be in the presence of or
  167  appearing before another individual if the individuals are
  168  either:
  169         (a) In the same physical location; or
  170         (b) In different physical locations, but can communicate
  171  with each other by means of live video conference, if the
  172  following requirements are met:
  173         1. The testator or principal may not be in an end-stage
  174  condition as defined in s. 765.101 or a vulnerable adult as
  175  defined in s. 415.102. The contestant of the document has the
  176  burden of proving that the testator or principal was in an end
  177  stage condition or was a vulnerable adult at the time of
  178  executing the document.
  179         2. The signal transmission must be live and in real time.
  180         3. The signal transmission must be secure from interception
  181  through lawful means by anyone other than the persons
  182  communicating.
  183         4. The persons communicating must simultaneously see and
  184  speak to one another with reasonable clarity.
  185         5. In the video conference, the persons communicating must
  186  establish the identity of the testator or principal by:
  187         a. Personal knowledge, if the person asserting personal
  188  knowledge explains how the identity of the testator or principal
  189  has come to be known to, and the length of time for which it has
  190  been known by, such person; or
  191         b. Presentation of any of the forms of identification of
  192  the testator or principal, as set forth in s. 117.05(5)(b)2.a.
  193  i.
  194         6. In the video conference, the persons communicating must
  195  demonstrate awareness of the events taking place, which may be
  196  achieved, without limitation, by stating their names and
  197  identifying any document they intend to sign.
  198         7. At least one of the persons communicating must be
  199  either:
  200         a. An attorney licensed to practice law in this state:
  201         (I) Who electronically signs the document as a witness;
  202         (II) Whose status as an attorney licensed to practice law
  203  in this state is indicated adjacent to his or her electronic
  204  signature; and
  205         (III) Whose electronic signature is accompanied by his or
  206  her statement that, to the best of his or her knowledge, the
  207  execution of the document complied with the requirements of this
  208  section; or
  209         b. A Florida notary public:
  210         (I) Who electronically signs the document;
  211         (II) Whose electronic signature is accompanied by a notary
  212  public seal that meets the requirements of s. 117.021(3); and
  213         (III) Whose electronic signature and seal are accompanied
  214  by his or her certification that, to the best of his or her
  215  knowledge, the execution of the document complied with the
  216  requirements of this section.
  217  
  218  If a document is required to be witnessed or acknowledged, the
  219  witness or notary fulfilling that requirement may be the same
  220  witness or notary who fulfills the requirement of this
  221  subparagraph.
  222         8. In the video conference, the testator or principal must
  223  provide verbal answers to all of the following questions:
  224         a. Are you over the age of 18?
  225         b. Are you under the influence of any drugs or alcohol that
  226  impairs your ability to make decisions?
  227         c. Are you of sound mind?
  228         d. Did anyone assist you in accessing this video
  229  conference? If so, who?
  230         e. Has anyone forced or influenced you to include anything
  231  in this document which you do not wish to include?
  232         f.Are you signing this document voluntarily?
  233         9. A time-stamped recording of the entire video conference
  234  must be identifiable with the document being signed and stored
  235  in the electronic record containing the document by a qualified
  236  custodian in the manner required pursuant to s. 732.527(1)(c)
  237  for the storage of electronic records containing electronic
  238  wills.
  239         a.Without limitation, a recording is identifiable with a
  240  document if the recording and document share an identification
  241  number.
  242         b.If the recording is not reasonably accessible by a
  243  person presented with the document, such person may treat the
  244  document as if it does not include the signature of any
  245  signatory who appeared by means of live video conference;
  246  however, an electronic will whose execution included the use of
  247  video conference under this section may be proved as provided in
  248  s. 733.201(4). Without limitation, a recording is reasonably
  249  accessible if it is accessible at no charge over the Internet
  250  pursuant to instructions set forth in the document.
  251         (2)If a law requires a record to be in writing, an
  252  electronic record satisfies such provision.
  253         (3) Any requirement that a document be signed may be
  254  satisfied by an electronic signature.
  255         (4)A document that is signed electronically is deemed to
  256  be executed in this state if all of the following requirements
  257  are met:
  258         (a)The document states that the person creating the
  259  document intends to execute and understands that he or she is
  260  executing the document in, and pursuant to the laws of, this
  261  state.
  262         (b)The person creating the document is, or the attesting
  263  witnesses or Florida notary public whose electronic signatures
  264  are obtained in the execution of the document are, physically
  265  located within this state at the time the document is executed.
  266         (c)In the case of a self-proved electronic will, the
  267  electronic will designates a qualified custodian who is
  268  domiciled in and a resident of this state or incorporated or
  269  organized in this state.
  270         Section 8. Section 732.526, Florida Statutes, is created to
  271  read:
  272         732.526Probate.—An electronic will of a nonresident of
  273  this state which is executed or deemed executed in another state
  274  in accordance with the laws of that state or of this state may
  275  be offered for and admitted to original probate in this state
  276  and is subject to the jurisdiction of the courts of this state.
  277  The venue for the probate of electronic wills is as provided in
  278  s. 733.101(1) or, in the case of the electronic will of a
  279  nonresident, may be the county in which the qualified custodian
  280  or attorney for the petitioner or personal representative has
  281  his or her domicile or registered office.
  282         Section 9. Section 732.527, Florida Statutes, is created to
  283  read:
  284         732.527 Qualified custodians.—
  285         (1)To serve as a qualified custodian of an electronic
  286  will, a person or entity must:
  287         (a)Not be named as a fiduciary under the electronic will
  288  or an heir or devisee, as defined in s. 731.201, of the
  289  testator;
  290         (b)Be domiciled in and a resident of this state or be
  291  incorporated or organized in this state;
  292         (c)In the course of maintaining custody of electronic
  293  wills, regularly employ, and store electronic records containing
  294  electronic wills in, a system that:
  295         1.Protects electronic records from destruction,
  296  alteration, or unauthorized access; and
  297         2. Detects any change to an electronic record; and
  298         (d)Furnish for any court hearing involving an electronic
  299  will that is currently or was previously stored by the qualified
  300  custodian any information requested by the court pertaining to
  301  the qualified custodian’s qualifications, policies, and
  302  practices related to the creation, sending, communication,
  303  receipt, maintenance, storage, and production of electronic
  304  wills.
  305         (2)The qualified custodian of an electronic will shall
  306  provide access to or information concerning the electronic will,
  307  or the electronic record containing the electronic will, only:
  308         (a) To the testator;
  309         (b) To persons authorized by the testator in the electronic
  310  will or in written instructions signed by the testator in
  311  accordance with s. 732.502;
  312         (c) After the death of the testator, to the testator’s
  313  nominated personal representative; or
  314         (d) At any time, as directed by a court of competent
  315  jurisdiction.
  316         (3)The qualified custodian of the electronic record of an
  317  electronic will may elect to destroy such record, including any
  318  of the documentation required to be created and stored under
  319  paragraph (1)(d), at any time after the earlier of the fifth
  320  anniversary of the conclusion of the administration of the
  321  estate of the testator or 20 years after the death of the
  322  testator.
  323         (4)A qualified custodian who at any time maintains custody
  324  of the electronic record of an electronic will may elect to
  325  cease serving in such capacity by:
  326         (a)Delivering the electronic will or the electronic record
  327  containing the electronic will to the testator, if then living,
  328  or, after the death of the testator, by filing the will with the
  329  court in accordance with s. 732.901; and
  330         (b)If the outgoing qualified custodian intends to
  331  designate a successor qualified custodian, by doing the
  332  following:
  333         1. Providing written notice to the testator of the name,
  334  address, and qualifications of the proposed successor qualified
  335  custodian. The testator must provide written consent before the
  336  electronic record, including the electronic will, is delivered
  337  to a successor qualified custodian;
  338         2.Delivering the electronic record containing the
  339  electronic will to the successor qualified custodian; and
  340         3.Delivering to the successor qualified custodian an
  341  affidavit of the outgoing qualified custodian stating that:
  342         a.The outgoing qualified custodian is eligible to act as a
  343  qualified custodian in this state;
  344         b.The outgoing qualified custodian is the qualified
  345  custodian designated by the testator in the electronic will or
  346  appointed to act in such capacity under this paragraph;
  347         c.The electronic will has at all times been in the custody
  348  of one or more qualified custodians in compliance with this
  349  section since the time the electronic record was created, and
  350  identifying such qualified custodians; and
  351         d.To the best of the outgoing qualified custodian’s
  352  knowledge, the electronic will has not been altered since the
  353  time it was created.
  354  
  355  For purposes of making this affidavit, the outgoing qualified
  356  custodian may rely conclusively on any affidavits delivered by a
  357  predecessor qualified custodian in connection with its
  358  designation or appointment as qualified custodian; however, all
  359  such affidavits must be delivered to the successor qualified
  360  custodian.
  361         (5)Upon the request of the testator which is made in a
  362  writing signed in accordance with s. 732.502, a qualified
  363  custodian who at any time maintains custody of the electronic
  364  record of the testator’s electronic will must cease serving in
  365  such capacity and must deliver to a successor qualified
  366  custodian designated in writing by the testator the electronic
  367  record containing the electronic will and the affidavit required
  368  in subparagraph (4)(b)3.
  369         (6)A qualified custodian may not succeed to office as a
  370  qualified custodian of an electronic will unless he or she
  371  agrees in writing to serve in such capacity.
  372         (7)If a qualified custodian is an entity, an affidavit, or
  373  an appearance by the testator in the presence of a duly
  374  authorized officer or agent of such entity, acting in his or her
  375  own capacity as such, shall constitute an affidavit, or an
  376  appearance by the testator in the presence of the qualified
  377  custodian.
  378         (8)A qualified custodian must provide a paper copy of an
  379  electronic will and the electronic record containing the
  380  electronic will to the testator immediately upon request. For
  381  the first such request in any 365-day period, the testator may
  382  not be charged a fee for being provided with these documents.
  383         (9)The qualified custodian shall be liable for any damages
  384  caused by the negligent loss or destruction of the electronic
  385  record, including the electronic will, while it is in the
  386  possession of the qualified custodian. A qualified custodian may
  387  not limit liability for such damages.
  388         (10)A qualified custodian may not terminate or suspend
  389  access to, or downloads of, the electronic will by the testator.
  390         (11) Upon receiving information that the testator is dead,
  391  a qualified custodian must deposit the electronic will with the
  392  court in accordance with s. 732.901. A qualified custodian may
  393  not charge a fee for depositing the electronic will with the
  394  clerk, providing the affidavit is made in accordance with s.
  395  732.503, or furnishing in writing any information requested by a
  396  court under paragraph (1)(d).
  397         (12)Except as provided in this act, a qualified custodian
  398  must at all times keep information provided by the testator
  399  confidential and may not disclose such information to any third
  400  party.
  401         Section 10. Section 733.201, Florida Statutes is amended to
  402  read:
  403         733.201 Proof of wills.—
  404         (1) Self-proved wills executed in accordance with this code
  405  may be admitted to probate without further proof.
  406         (2) A will, other than an electronic will, may be admitted
  407  to probate upon the oath of any attesting witness taken before
  408  any circuit judge, commissioner appointed by the court, or
  409  clerk.
  410         (3) If it appears to the court that the attesting witnesses
  411  cannot be found or that they have become incapacitated after the
  412  execution of the will or their testimony cannot be obtained
  413  within a reasonable time, a will, other than an electronic will,
  414  may be admitted to probate upon the oath of the personal
  415  representative nominated by the will as provided in subsection
  416  (2), whether or not the nominated personal representative is
  417  interested in the estate, or upon the oath of any person having
  418  no interest in the estate under the will stating that the person
  419  believes the writing exhibited to be the true last will of the
  420  decedent.
  421         (4)If an electronic will, including an electronic will
  422  whose execution included the use of a video conference under s.
  423  732.525(1)(b), is not self-proved, an electronic will may be
  424  admitted to probate upon the oath of the two attesting witnesses
  425  for the electronic will taken before any circuit judge, any
  426  commissioner appointed by the court, or the clerk. If it appears
  427  to the court that the attesting witnesses cannot be found, that
  428  they have become incapacitated after the execution of the
  429  electronic will, or that their testimony cannot be obtained
  430  within a reasonable time, an electronic will may be admitted to
  431  probate upon the oath of two disinterested witnesses providing
  432  all of the following information:
  433         (a)The date on which the electronic will was created, if
  434  the date is not indicated in the electronic will itself.
  435         (b)When and how the electronic will was discovered, and by
  436  whom.
  437         (c)All of the people who had access to the electronic
  438  will.
  439         (d)The method by which the electronic will was stored and
  440  the safeguards that were in place to prevent alterations to the
  441  electronic will.
  442         (e)A statement as to whether the electronic will has been
  443  altered since its creation.
  444         (f)A statement that the electronic will is a true,
  445  correct, and complete tangible manifestation of the testator’s
  446  will.
  447         (g)If the execution of an electronic will included the use
  448  of a video conference under s. 732.525(1)(b), a statement as to
  449  whether a recording of the video conference is available for
  450  inspection by the court or cannot be found after a diligent
  451  search.
  452         (5)A paper copy of an electronic will which is a true and
  453  correct copy of the electronic will may be offered for and
  454  admitted to probate and shall constitute an “original” of the
  455  electronic will.
  456         Section 11. Paragraph (b) of subsection (2) of section
  457  736.0403, Florida Statutes, is amended to read:
  458         736.0403 Trusts created in other jurisdictions; formalities
  459  required for revocable trusts.—
  460         (2) Notwithstanding subsection (1):
  461         (b) The testamentary aspects of a revocable trust, executed
  462  by a settlor who is a domiciliary of this state at the time of
  463  execution, are invalid unless the trust instrument is executed
  464  by the settlor with the formalities required for the execution
  465  of a will under s. 732.502 or an electronic will under s.
  466  732.523 which is self-proved; however, the qualified custodian
  467  of the trust instrument may not also be a trustee of the trust
  468  in this state. For purposes of this subsection, the term
  469  “testamentary aspects” means those provisions of the trust
  470  instrument that dispose of the trust property on or after the
  471  death of the settlor other than to the settlor’s estate.
  472         Section 12. This act applies to electronic wills executed
  473  on or after July 1, 2017.
  474         Section 13. This act shall take effect July 1, 2017.