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RPPTL Section seeks amendments to e-notary, e-will laws

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Real Property, Probate & TrustCiting uncertainties and sometimes vague instructions, the Real Property, Probate and Trust Law Section is supporting a glitch bill addressing lingering questions from state laws that went into effect earlier this year allowing signing of wills and online notarizations.

The section received Bar Board of Governors authority to support the changes at the board’s October meeting.

One key issue, according to Angela Adams, chair of the section’s Ad Hoc Committee on Electronic Wills, is while the law addresses standards for remote notary operations, it is vague when notaries supervise witnesses signing documents that don’t require notarization.

“There were several issues in the witnesses’ portion that we were trying to address and generally it was a lack of clarity and we were trying to get some changes in there to clarify it,” Adams said.

Another difficulty is several forms used with trust and estate matters were not updated to reflect those documents now may be notarized remotely, she said.

“Those statutory forms failed to comply with the requirements for online notarizations,” she said.

Adams prepared a white paper for the section to submit with its legislation request to the Board of Governors. It identified three main areas of concern: lack of direction for supervising the witnessing of electronic records; several erroneous cross references; and the failure to update the forms.

The section is proposing several solutions:

• Require that online notarization procedures apply when an electronic document requires witnesses, even if notarization is not required. That would include verifying the identity of the principal, requiring the notary to maintain a witness record in the notary’s electronic journal, and preserving an audio-video record of the document execution and witnessing.

• Clearly define that a notary’s supervision of the witnessing of an electronic record is a notarial act and include that an “online notarization” includes the appearance of witnesses via audio-visual technology.

• Clarify in §117.285(2) that the procedures for identifying a principal follow those set out in §117.265(4).

• Address a conflict between §117.285(5) and §736.0403(2)(b). The latter “requires the testamentary aspects contained in a revocable trust created by a Florida resident to be executed with the same formalities required for the execution of a will.” The new law, §117.285(5), said those requirements apply to a “trust with testamentary aspects” broadly and conflict with the probate law. The section is recommending the new law be adjusted to conform with the trust code. Adams said while that might seem to some as a minor point, it is critical for lawyers who deal with such trusts.

• The description of §732.701 in §117.285(5) is imprecise since it only refers to waivers of spousal rights while the former statute also covers “agreements to make a will, give a devise, not revoke a will, not revoke a devise, not to make a will, and not to make a devise.” The section said §117.285(5) should be amended to clarify it is not limited to waivers of spousal rights.

• Clarifying various aspects of witnessing requirements. Adams said the law appears to impose the stringent checks for remote witness identity even when the witnesses are physically present with the notary and such extra steps aren’t needed. It’s also not clear how notaries would handle having one witness physically present but another appearing remotely.

• Amend numerous forms in §§709.2119(2)(c), 732.401(2)(e), 732.503(1), 732.703(5)(b)3.and 4., and 747.051(1) so that, according to the white paper, “the jurats or notarial certificates in those statutory forms comply with the new requirements of §117.05(4)(c) which became effective January 1, 2020.”

Adams said she hasn’t seen any online platforms yet that fully comply with the new statutory requirements for online executing of will and estate documents, although there are qualifying online platforms for notary services.

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