Bill Text: FL S0206 | 2017 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Wills and Trusts
Spectrum: Bipartisan Bill
Status: (Vetoed) 2017-04-28 - Laid on Table, companion bill(s) passed, see CS/HB 1379 (Ch. 2017-155) [S0206 Detail]
Download: Florida-2017-S0206-Comm_Sub.html
Bill Title: Wills and Trusts
Spectrum: Bipartisan Bill
Status: (Vetoed) 2017-04-28 - Laid on Table, companion bill(s) passed, see CS/HB 1379 (Ch. 2017-155) [S0206 Detail]
Download: Florida-2017-S0206-Comm_Sub.html
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: 115 732.523 Electronic 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: 161 732.525 Method 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: 272 732.526 Probate.—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 468in 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.