Electronic Wills May Be Coming Soon

Every time I meet with clients to sign their new estate plan, I’m reminded that Estate Planning really has not kept up with advances in technology. We have to meet in the same room, we sign paper documents, we make copies and scanned copies, we produce a binder filled with paper, and there’s really no current way around that. North Carolina law requires original wills to be probated (or adequate testimony as to why the original cannot be produced), and so the Executor must produce a paper original with original signatures and original notary stamp. It’s very 1950. This may all be changing in the near future, based on a bill currently being presented in Florida.

Florida Electronic Wills Act

The “Florida Electronic Wills Act” – should it pass and be signed into law – would allow for the execution of wills in electronic form (e-sign) and for the signing and notary to be done via video conferencing. This seemingly solves all of the issues listed above:

  1. No paper
  2. No physical meeting
  3. No “originals”
  4. No pens

The testator (the person creating and signing the will) could be in Miami and the Lawyer and witnesses could be in Orlando – no problems. If the signing happens by virtue of video-conferencing, a recording of the signing ceremony would need to be made and kept with the electronic record of the will.

Qualified Custodians

The bill requires, however, a “qualified custodian” to hold the electronically executed will in a secure location. I imagine this will be the lawyer saving the electronic record in an encrypted location with adequate back-up.

5-Year Record Preservation

Electronic wills would be submitted to probate the same way paper wills are currently, but after five (5) years has passed from the date of submission of the electronic record to probate, the qualified custodian could destroy the record pursuant to a regular document retention policy.

Potential for North Carolina

I know what you’re thinking – “Paul, that’s great for Florida, but I don’t live in Florida, I live in North Carolina. What does this have to do with me?” Good question.
The concept of an electronic execution of testamentary documents has always been intriguing since the technology was developed to make it possible. The issue has been that most states don’t want to be first, or knows how to implement something like this. So, Florida is going to potentially be the champion of this concept and be a bellwether for other states (like North Carolina) for whether it’s going to work – much like Colorado was with legalizing recreational marijuana sales. If it works in Florida, it likely won’t be long before a similar bill is presented in North Carolina.