Conducting business online is routine these days. We pay bills online. Shop online. Bank online. File tax returns online. So it’s natural to ask: Can we create a valid will online? (To be clear, an electronic will does not refer to just downloading a form from a website. It means creating, signing, witnessing, notarizing, and storing the document online.)
In Florida and in all states except two (Nevada and Indiana), the answer is no. The electronic will has proven that it is not quite ready for prime time. If and when it will be remains to be seen.
To guard against fraud, a will must be executed with painstaking formalities. Unlike other documents, the will goes into action only when its creator is no longer around. Pairing those strict legal requirements with digital technology is proving to be a challenge.
Not that Florida
hasn’t tried. In 2017 the state passed the Electronic Wills Act, which included rules governing how the testator, notary and witnesses could participate in a will signing by secure video
link – even if they were in different locations. The bill required the video to be recorded, time stamped and stored along with the will. After signing,
the will would need to be stored online with a “qualified custodian.”
The bill never came to fruition, though. It was vetoed by the governor amidst a swirl of unanswered questions. Critics worried about hacking, despite proponents’ belief that technologies like Blockchain can keep the process secure. There were also concerns about fraud: Could
someone unseen be off-camera during a video conference, influencing the testator?
And what would happen if the online custodian went out of business? What about
hardware and software glitches? These and other challenging issues are currently under review by the Uniform Commission on Law.
Creating a will is not about filling in the blanks. You should always discuss your situation and goals with a qualified estate planning attorney who knows the law and will make sure this most important document is executed properly. Electronic wills may be in our future, but we are definitely not there yet.