By Phil Rarick, Esq. and Jacqueline Bowden Gold, Esq., Miami Lakes and Weston Estate Planning Attorneys,with special thanks for comments by Rick Stockton, Esq. of Holland & Knight, a primary author of the Lawgic Florida Wills and Trust program.
Editor’s Note: The following is a public service Alert from Rarick & Beskin, P.A. This firm does not offer or recommend Remote Online Notarization Service providers.
As previously reported, Florida’s new Remote Online Notarization law became effective January 1st of this year for all documents except for wills, trusts and other testamentary instruments, that becomes effective July 1. See Florida’s Remote Online Notarization Begins January 1.
For clients with underlying medical conditions who do not wish to leave their home because of Covid-19, as Weston and Miami Lakes estate planning attorney we are already scheduling RON signings for July 1 and after. I am sure many other Miami estate planning attorneys are doing the same. However, here are 5 Sand-Traps to watch for with Florida’s new Remote Online Notarization law.
1. Remote Online Notarization Is Not Available For A Vulnerable Adult
A vulnerable adult is “a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.” Fla. Stat. §415.102(28). The act requires the will testator or trust settlor to answer the following three questions: 1) Are you under the influence of any drug or alcohol today that impairs your ability to make decisions? 2) Do you have any physical or mental condition or long-term disability that impairs your ability to perform the normal activities of daily living? 3) Do you require assistance with daily care? If the principal answers yes to any of these questions, the principal may no longer execute a document outside the physical presence of witnesses, see F.S. §117.285(5).
2. The Client – And Witnesses – Need To Pass The 2 Minute Identification Quiz
The client needs be advised in advance that he or she will be asked at least five questions drawn from third party providers of public data that is identifiable to the client’s social security number and under a two minute constraint, must answer at least 80% of the questions correctly with only one chance to retake the test. Witnesses must take the same quiz. Fla. Stat. §117.265(2).
Zoom Side Note: If you – like us – have become big fans of Zoom, sorry, Zoom is not used by Remote Online Notarization providers to our knowledge. However, if your client can “Facetime” with an iPhone or “WhatsApp” then your client can use a cell phone. Otherwise, the client needs a laptop or PC with a video camera.
3. The Self-Proving Affidavit Has Special Requirements
The Self-Proving Affidavit has always been an outlier in Florida law in the context of affidavits. Under the new law, a Self-Proof for an electronic will must have the information required by F.S. 732.523. Below is a suggested form from the Florida Lawgic program that we are providing to fellow estate planning attorneys with the understanding that you must make your own assessment of the statutory requirements. The additions pursuant to the statute are a statement that this is an online notarization and an identification of how the witnesses fulfilled the presence requirement (physical or electronic).
Note from Rick Stockton:
The Lawgic form shown below includes an affirmation by the testator/testatrix that he or she is not a vulnerable adult; there is no statutory requirement for this, and it does not satisfy the duty of the remote notary to make that determination independently, but the Lawgic form adds that language, according to the Florida author, to make this concept stand out for the person signing, or possibly for others nearby. If the client has reservations about confirming that, or doesn’t understand it, maybe a little extra investigation is required before signing.
4. Remote Online Notarization Available For Trusts
The new Florida Remote Online Notarization law broadly defines “electronic will” to include any testamentary instrument “which disposes of the person’s property on or after his or her death and includes an instrument that merely appoints a personal representative or guardian or revokes or revises another will.” Fla. Stat. §732.521(4). This includes any trust with testamentary provisions under Ch. 736.
5. Florida Durable Power Of Attorney: Remote Online Notarization Not Available For “Superpowers”
Florida allows for certain “Superpowers” to be included in the DPA, such as the power to (a) create an inter vivos trust; (b) with respect to a trust created by or for the principal, amend, modify, revoke, or terminate the trust when the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor’s agent; (c) make a gift; (d) create or change rights of survivorship; or (e) create or change a beneficiary designation. See Fla. Stat. §709.2202(1). The new law allows for a principal to electronically execute a DPA using Remote Online Notarization, but specifically excepts Superpowers. A DPA signed containing these Superpowers will still be valid, but only for the non-superpowers granted.
Although it would be best if the Governor would advance the July 1 date for allowing Remote Online Notarization of wills and trusts because of Covid-19, it appears he will not or legally cannot do this. However, beginning July 1, Florida’s Remote Online Notarization law will be a much needed option for those persons who cannot venture outside of their homes due to underlying medical conditions or other concerns. We have quickly embraced Remote Online Notarization for deeds; we anticipate Miami Lakes and Weston estate planning attorneys will quickly adopt RON for trusts and wills.
Suggested Self-Proving Affidavit
Note: Special thanks to Rick Stockton and Lawgic software for use of this form. For more information about Lawgic Florida estate planning software call 877-252-9442. Lawgic is the dominant estate planning software in Florida and the preferred software used by Rarick & Beskin.
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
I, [NAME], declare to the officer taking my acknowledgment of this electronic instrument, and to the subscribing witnesses, that I am not a vulnerable adult as defined in Florida Statutes §415.102, and that I signed this instrument as my Last Will and Testament.
We, ______________________________ and ______________________________, have been sworn by the officer signing below, and declare to that officer on our oaths that the testatrix declared the instrument to be her Last Will and Testament and signed it in our presence, and that we each signed the instrument as a witness in the presence, physical or electronic, of the testatrix and of each other.
Physical _____ ______________________________
Online _____ Witness
Physical _____ ______________________________
Online _____ Witness
Acknowledged and subscribed before me by the testatrix, [NAME], who is personally known to me, and sworn to and subscribed before me by the witnesses, ______________________________ and ______________________________, both of whom are personally known to me, and subscribed by me in the presence of the testatrix and the witnesses, all on [DATE]. This was an online notarization.
Notary Public, State of Florida
(Stamp Name, Commission # and Expiration below)
The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Weston estate planning attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.