Technologist - The FindLaw Legal Technology Blog

Will Electronic Wills Be Legal Soon?

This is not your father's will.

Electronic wills, as proposed in the Florida Electronic Wills Act, are created in an electronic form, including e-signatures for testators with remote witnesses and notaries. In other words, the document will be made in a virtual world.

If Florida enacts the law, it will become the second state in the country to expressly authorize electronic wills. While technology is pushing legal innovation everywhere, not all probate lawyers are ready to adopt the electronic will just yet.

More Safeguards

"Even recognizing that with the advent of technology, a testator may wish to create and sign a will on a tablet, computer, or in another electronic form, the Proposed Act in its current form goes far beyond merely recognizing the validity of electronic signatures on electronic wills," according to David M. Goldman, a lawyer who publishes the Florida Estate Planning Lawyer Blog.

Nevada was the first state to authorize electronic wills, and includes safeguards for authentication. It requires that electronic wills be authenticated through finger prints, retinal scan, voice recognition, facial recognition, digital signature or other unique authentication process.

Goldman says the Florida law has insufficient safeguards. For example, he said the provisions for remote witnesses and notaries will expose testators to fraud.

"It allows for the witnessing and notarization of wills using remote audio and video technology without providing adequate safeguards to prevent fraud and exploitation of Florida's most vulnerable citizens and to ensure the identity of the witnesses and the testator and the security and integrity of the electronic wills," he says.

More States

Meanwhile, at least three other states are considering similar legislation. Colorado attorney Herbert E. Tucker predicts that electronic wills and digital storage of estate planning documents will become "a hot topic in many states."

"It is anticipated that the biggest issue regarding the admission of electronic wills will be the difficulty in authenticating the electronic document," Tucker wrote for his law firm blog. "A digitized signature has been defined as a graphical image of a handwritten signature that is created, generated or stored by electronic means."

The Florida bill, if passed, will take effect in July 1, 2017.

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