Welcome to the Future of Wills

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Major changes are coming for Florida’s probate and estate planning industry. On January 1, 2020 House Bill 409 introduced remote online notarizations (RON) to Florida, replacing the traditional “presence” requirement for notarizations in which the parties had to be physically in the same room with a standard that considers being able to see, hear and communicate with each other by means of audio-video communication technology as satisfactory. On July 1, 2020 that new presence requirement and the remote online notarization process will be leveraged for the execution of wills, bringing the same benefits of increased accessibility and security that notarizations have enjoyed, to wills.

Traditional will formalities in Florida require that to have a validly executed will, it must have been signed by the testator, in the presence of two attesting witnesses who also sign in the presence of the testator and each other. This means that three people must be in the same room at the same time to execute a will. Now, if facilitated by an online notary, this process can be handled remotely and entirely online.

So, what would this look like to someone trying to execute their will by this new procedure? To begin, the soon-to-be-testator would upload their will as an electronic document to a RON platform. Then through identity proofing procedures such as credential analysis and knowledge-based authentication the testator’s identity is verified. Credential analysis assists the notary in determining the validity of a government issued identification credential by comparing the credential against public and proprietary data sources. Knowledge based authentication formulates a series of questions based on public data sources that only the individual in question should be able to answer. After that, the live video and audio session with the notary begins, which is recorded and retained for 10 years by the RON platform. These identity proofing procedures coupled with the recording of the audio and video session bolster the security and integrity of the transaction.

Upon identifying that the document to be signed is a will, the online notary is required to ask the testator various questions such as; whether they are under the influence of any drugs or alcohol, if they have any condition or disability that affects their ability to perform normal activities or require assistance with daily care. To further increase the integrity of the will execution, the notary is required to ask; if the testator is married, if anyone helped the testator access the online session or prepare the documents, the testator’s current location, and if anyone else is in the room. The recorded answers to these questions would likely make convincing evidence should the will later be contested for fraud or undue influence.

The RON platform must provide a disclaimer that if the testator fits the definition of a vulnerable adult, then the witnesses cannot be remote from the testator. The testator then has the option of providing their own witnesses that are in the same room as the testator, or have witnesses connect to the session remotely. Witnesses that connect to the session remotely are then certified through the same identity proofing procedures the testator went through. The witnesses must also verbally confirm that they are located within the United States or a territory of the United States at the time of witnessing. If those prerequisites are satisfied then the testator may sign, verbally declaring the same, and the witnesses may sign as well, thereby validly executing a will online while remote from the testator.

RON has been a revolutionary tool for notaries in states that have enacted it, and Florida’s novel use of RON in the probate and estate planning space seems to show that the revolution is far from over. James Mitchell 

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