Read This Before Coronavirus Scares You into Creating an Online DIY Will
By: Barry E. Haimo, Esq.
April 16, 2020
As the country continues to deal with this coronavirus pandemic, news sources report a surge in DIY will creation coast-to-coast.
In the wake of the real toll this virus is taking, a desire to ensure your affairs are in order makes total sense. Floridians may especially be interested in jumping on the digital will bandwagon in light of newly enacted legislation.
Before you rush to just any online DIY will site and enter your credit card number, however, you’d be ill-advised not to check with your estate planning attorney first.
Why? Because the online will you choose may not be what you need. Only a few people really can benefit from these services, and even if the documents are perfect, there could be a fatal procedural or execution issue. This post focuses on the procedural issues, and we leave the substance for another day.
Electronic Will Legislation in Florida
The component of the new legislation poised to have the greatest impact on Floridians is the provision regarding notaries and other witnesses.
Notaries are now legally authorized to perform their services remotely by affixing their seals and signatures to most legal documents without being physically present. Witnesses who formerly needed to appear in person may (Starting July 1, 2020) now do so via live video links as well. It still requires a formal process and using particular software though.
A primary concern presented by the Florida Bar is fraudulent activity and coercion that already exists – especially in South Florida. Are you familiar with the digital document company you’re working with? Is the notary public truly certified to perform their duties here in Florida? Are you going to do it in the right setting that minimizes the likelihood of litigation?
Even if you are 100 percent confident everyone involved is legitimate, take a pause. While this will certainly make it easier to manage your affairs, your will could also be deemed invalid based on legal technicalities.
Florida-Specific Probate Law Provisions
Every state has its own probate statute; these are the rules and regulations associated with how your property is to be distributed upon your death. Common variations of laws across the states include (but are not limited to):
- The construction of a will (whether it can be hand-written, typed, or both).
- Whether the will needs to be signed, witnessed, and/or notarized.
- The ways in which a will may be validated or invalidated.
In Florida, for instance, holographic wills (ones hand-written) are not considered valid under any circumstances. Let’s say you complete your electronic will and print it out, but then find you need to make changes.
The provision for holographic wills includes hand-written changes. So if you cross out a mistake (instead of paying for a new draft online) and handwrite what you meant to include, your will is no longer valid.
These are just a few examples of the issues with your online DIY will that could arise only when it’s too late. For those who do need to draft a will, and want to do it online, you still have fail-safe options.
Options for Ensuring Your Florida Will is Valid (Remotely)
Understand the requirements for creating a valid will in Florida. Confirm the digital will aligns with Florida probate law, too. Ensure every party involved has the proper certifications and is authorized to provide their services in Florida.
Furthermore, do not agree to requirements that you do not consult with an attorney (some DIY wills contain this type of verbiage in the fine print). Wait on payment until after an attorney has reviewed your drafted will with you. Or simply go to a Florida estate planning attorney for the right documents in the first place.
Whatever you do, involve an experienced Florida-based estate planning attorney to ensure your will is to be executed exactly as you plan. If you are currently practicing social distancing, ask Haimo Law about our remote guidance options!
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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