Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. CS for SB 206
       
       
       
       
       
       
                                Ì370522wÎ370522                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/17/2017           .                                
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       The Committee on Banking and Insurance (Passidomo) recommended
       the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 93 - 335
    4  and insert:
    5         (2) “Electronic signature” means an electronic mark visibly
    6  manifested in a record as a signature and executed or adopted by
    7  a person with the intent to sign the record.
    8         (3) “Electronic will” means a will, including a codicil,
    9  executed in accordance with s. 732.523 by a person in the manner
   10  prescribed by this act, which disposes of the person’s property
   11  on or after his or her death and includes an instrument that
   12  appoints a personal representative or revokes or revises another
   13  will or electronic will.
   14         (4) “Qualified custodian” means a person who meets the
   15  requirements of s. 732.527(1).
   16         Section 5. Section 732.523, Florida Statutes, is created to
   17  read:
   18         732.523Electronic wills.—Notwithstanding s. 732.502:
   19         (1)An electronic will must meet all of the following
   20  requirements:
   21         (a)Exist in an electronic record that is unique and
   22  identifiable.
   23         (b)Be electronically signed by the testator in the
   24  presence of at least two attesting witnesses.
   25         (c)Be electronically signed by the attesting witnesses in
   26  the presence of the testator and in the presence of each other.
   27         (2)Except as otherwise provided in this act, all questions
   28  as to the force, effect, validity, and interpretation of an
   29  electronic will that complies with this section must be
   30  determined in the same manner as in the case of a will executed
   31  in accordance with s. 732.502.
   32         Section 6. Section 732.524, Florida Statutes, is created to
   33  read:
   34         732.524 Self-proof of electronic will.—An electronic will
   35  is self-proved if all of the following requirements are met:
   36         (1)The electronic will is executed in conformity with this
   37  act.
   38         (2)The acknowledgment of the electronic will by the
   39  testator and the affidavits of the witnesses are made in
   40  accordance with s. 732.503 and are part of the electronic record
   41  containing the electronic will, or are attached to, or are
   42  logically associated with, the electronic will.
   43         (3)(a)The electronic will designates a qualified
   44  custodian;
   45         (b) The electronic record that contains the electronic will
   46  is held in the custody of a qualified custodian at all times
   47  before being offered to the court for probate; and
   48         (c) The qualified custodian who has custody of the
   49  electronic will at the time of the testator’s death:
   50         1. Certifies under oath that, to the best knowledge of the
   51  qualified custodian, the electronic record that contains the
   52  electronic will was at all times before being offered to the
   53  court in the custody of a qualified custodian in compliance with
   54  s. 732.527 and that the electronic will has not been altered in
   55  any way since the date of its execution; and
   56         2. If the execution of the electronic will included the use
   57  of video conference under s. 732.525(1)(b), certifies under oath
   58  that the audio and video recording required under s.
   59  732.525(1)(b)9. is in the qualified custodian’s custody in the
   60  electronic record that contains the electronic will and is
   61  available for inspection by the court.
   62         Section 7. Section 732.525, Florida Statutes, is created to
   63  read:
   64         732.525Method and place of execution.—For purposes of this
   65  act, the execution and filing of a document with the court as
   66  provided in this act or the Florida Probate Rules, the execution
   67  of a durable power of attorney under s. 709.2105, and the
   68  execution of a living will under s. 765.302:
   69         (1) An individual is deemed to be in the presence of or
   70  appearing before another individual if the individuals are
   71  either:
   72         (a) In the same physical location; or
   73         (b) In different physical locations, but can communicate
   74  with each other by means of live video conference, if the
   75  following requirements are met:
   76         1. The testator or principal may not be in an end-stage
   77  condition as defined in s. 765.101 or a vulnerable adult as
   78  defined s. 415.102. The contestant of the document has the
   79  burden of proving that the testator or principal was in an end
   80  stage condition or was a vulnerable adult at the time of
   81  executing the document.
   82         2. The signal transmission must be live and in real time.
   83         3. The signal transmission must be secure from interception
   84  through lawful means by anyone other than the persons
   85  communicating.
   86         4. The persons communicating must simultaneously see and
   87  speak to one another with reasonable clarity.
   88         5. In the video conference, the persons communicating must
   89  establish the identity of the testator or principal by:
   90         a. Personal knowledge, if the person asserting personal
   91  knowledge explains how the identity of the testator or principal
   92  has come to be known to, and the length of time for which it has
   93  been known by, such person; or
   94         b. Presentation of any of the forms of identification of
   95  the testator or principal, as set forth in s. 117.05(5)(b)2.a.
   96  i.
   97         6. In the video conference, the persons communicating must
   98  demonstrate awareness of the events taking place, which may be
   99  achieved, without limitation, by stating their names and
  100  identifying any document they intend to sign.
  101         7. At least one of the persons communicating must be
  102  either:
  103         a. An attorney licensed to practice law in this state:
  104         (I) Who electronically signs the document as a witness;
  105         (II) Whose status as an attorney licensed to practice law
  106  in this state is indicated adjacent to his or her electronic
  107  signature; and
  108         (III) Whose electronic signature is accompanied by his or
  109  her statement that, to the best of his or her knowledge, the
  110  execution of the document complied with the requirements of this
  111  section; or
  112         b. A Florida notary public:
  113         (I) Who electronically signs the document;
  114         (II) Whose electronic signature is accompanied by a notary
  115  public seal that meets the requirements of s. 117.021(3); and
  116         (III) Whose electronic signature and seal are accompanied
  117  by his or her certification that, to the best of his or her
  118  knowledge, the execution of the document complied with the
  119  requirements of this section.
  120  
  121  If a document is required to be witnessed or acknowledged, the
  122  witness or notary fulfilling that requirement may be the same
  123  witness or notary who fulfills the requirement of this
  124  subparagraph.
  125         8. In the video conference, the testator or principal must
  126  provide verbal answers to all of the following questions:
  127         a. Are you over the age of 18?
  128         b. Are you under the influence of any drugs or alcohol that
  129  impairs your ability to make decisions?
  130         c. Are you of sound mind?
  131         d. Did anyone assist you in accessing this video
  132  conference? If so, who?
  133         e. Has anyone forced or influenced you to include anything
  134  in this document which you do not wish to include?
  135         f.Are you signing this document voluntarily?
  136         9. A time-stamped recording of the entire video conference
  137  must be identifiable with the document being signed and stored
  138  in the electronic record containing the document by a qualified
  139  custodian in the manner required pursuant to s. 532.527(1)(c)
  140  for the storage of electronic records containing electronic
  141  wills.
  142         a.Without limitation, a recording is identifiable with a
  143  document if the recording and document share an identification
  144  number.
  145         b.If the recording is not reasonably accessible by a
  146  person presented with the document, such person may treat the
  147  document as if it does not include the signature of any
  148  signatory who appeared by means of live video conference;
  149  however, an electronic will whose execution included the use of
  150  video conference under this section may be proved as provided in
  151  s. 733.201(4). Without limitation, a recording is reasonably
  152  accessible if it is accessible at no charge over the internet
  153  pursuant to instructions set forth in the document.
  154         (2)If a law requires a record to be in writing, an
  155  electronic record satisfies such provision.
  156         (3) Any requirement that a document be signed may be
  157  satisfied by an electronic signature.
  158         (4)A document that is signed electronically is deemed to
  159  be executed in this state if all of the following requirements
  160  are met:
  161         (a)The document states that the person creating the
  162  document intends to execute and understands that he or she is
  163  executing the document in, and pursuant to the laws of, this
  164  state.
  165         (b)The person creating the document is, or the attesting
  166  witnesses or Florida notary public whose electronic signatures
  167  are obtained in the execution of the document are, physically
  168  located within this state at the time the document is executed.
  169         (c)In the case of a self-proved electronic will, the
  170  electronic will designates a qualified custodian who is
  171  domiciled in and a resident of this state or incorporated or
  172  organized in this state.
  173         Section 8. Section 732.526, Florida Statutes, is created to
  174  read:
  175         732.526Probate.—An electronic will of a nonresident of
  176  this state which is executed or deemed executed in another state
  177  in accordance with the laws of that state or of this state may
  178  be offered for and admitted to original probate in this state
  179  and is subject to the jurisdiction of the courts of this state.
  180  The venue for the probate of electronic wills is as provided in
  181  s. 733.101(1) or, in the case of the electronic will of a
  182  nonresident, may be the county in which the qualified custodian
  183  or attorney for the petitioner or personal representative has
  184  his or her domicile or registered office.
  185         Section 9. Section 732.527, Florida Statutes, is created to
  186  read:
  187         732.527 Qualified custodians.—
  188         (1)To serve as a qualified custodian of an electronic
  189  will, a person or entity must:
  190         (a)Not be named as a fiduciary under the electronic will
  191  or an heir or devisee, as defined in s. 731.201, of the
  192  testator;
  193         (b)Be domiciled in and a resident of this state or be
  194  incorporated or organized in this state;
  195         (c)In the course of maintaining custody of electronic
  196  wills, regularly employ, and store electronic records containing
  197  electronic wills in, a system that:
  198         1.Protects electronic records from destruction,
  199  alteration, or unauthorized access; and
  200         2. Detects any change to an electronic record; and
  201         (d)Furnish for any court hearing involving an electronic
  202  will that is currently or was previously stored by the qualified
  203  custodian any information requested by the court pertaining to
  204  the qualified custodian’s qualifications, policies, and
  205  practices related to the creation, sending, communication,
  206  receipt, maintenance, storage, and production of electronic
  207  wills.
  208         (2)The qualified custodian of an electronic will shall
  209  provide access to or information concerning the electronic will,
  210  or the electronic record containing the electronic will, only:
  211         (a) To the testator;
  212         (b) To persons authorized by the testator in the electronic
  213  will or in written instructions signed by the testator in
  214  accordance with s. 732.502;
  215         (c) After the death of the testator, to the testator’s
  216  nominated personal representative; or
  217         (d) At any time, as directed by a court of competent
  218  jurisdiction.
  219         (3)The qualified custodian of the electronic record of an
  220  electronic will may elect to destroy such record, including any
  221  of the documentation required to be created and stored under
  222  paragraph (1)(d), at any time after the earlier of the 5th
  223  anniversary of the conclusion of the administration of the
  224  estate of the testator or 20 years after the death of the
  225  testator.
  226         (4)A qualified custodian who at any time maintains custody
  227  of the electronic record of an electronic will may elect to
  228  cease serving in such capacity by:
  229         (a)Delivering the electronic will or the electronic record
  230  containing the electronic will to the testator, if then living,
  231  or, after the death of the testator, by filing the will with the
  232  court in accordance with s. 732.901; and
  233         (b)If the outgoing qualified custodian intends to
  234  designate a successor qualified custodian, by doing the
  235  following:
  236         1. Providing written notice to the testator of the name,
  237  address, and qualifications of the proposed successor qualified
  238  custodian. The testator must provide written consent before the
  239  electronic record, including the electronic will, is delivered
  240  to a successor qualified custodian;
  241         2.Delivering the electronic record containing the
  242  electronic will to the successor qualified custodian; and
  243         3.Delivering to the successor qualified custodian an
  244  affidavit of the outgoing qualified custodian stating that:
  245         a.The outgoing qualified custodian is eligible to act as a
  246  qualified custodian in this state;
  247         b.The outgoing qualified custodian is the qualified
  248  custodian designated by the testator in the electronic will or
  249  appointed to act in such capacity under this paragraph;
  250         c.The electronic will has at all times been in the custody
  251  of one or more qualified custodians in compliance with this
  252  section since the time the electronic record was created, and
  253  identifying such qualified custodians; and
  254         d.To the best of the outgoing qualified custodian’s
  255  knowledge, the electronic will has not been altered since the
  256  time it was created.
  257  
  258  For purposes of making this affidavit, the outgoing qualified
  259  custodian may rely conclusively on any affidavits delivered by a
  260  predecessor qualified custodian in connection with its
  261  designation or appointment as qualified custodian; however, all
  262  such affidavits must be delivered to the successor qualified
  263  custodian.
  264         (5)Upon the request of the testator which is made in a
  265  writing signed in accordance with s. 732.502, a qualified
  266  custodian who at any time maintains custody of the electronic
  267  record of the testator’s electronic will must cease serving in
  268  such capacity and must deliver to a successor qualified
  269  custodian designated in writing by the testator the electronic
  270  record containing the electronic will and the affidavit required
  271  in subparagraph (4)(b)3.
  272         (6)A qualified custodian may not succeed to office as a
  273  qualified custodian of an electronic will unless he or she
  274  agrees in writing to serve in such capacity.
  275         (7)If a qualified custodian is an entity, an affidavit, or
  276  an appearance by the testator in the presence of a duly
  277  authorized officer or agent of such entity, acting in his or her
  278  own capacity as such, shall constitute an affidavit, or an
  279  appearance by the testator in the presence of the qualified
  280  custodian.
  281         (8)A qualified custodian must provide a paper copy of an
  282  electronic will and the electronic record containing the
  283  electronic will to the testator immediately upon request. For
  284  the first such request in any 365-day period, the testator may
  285  not be charged a fee for being provided with these documents.
  286         (9)The qualified custodian shall be liable for any damages
  287  caused by the negligent loss or destruction of the electronic
  288  record, including the electronic will, while it is in the
  289  possession of the qualified custodian. A qualified custodian may
  290  not limit liability for such damages.
  291         (10)A qualified custodian may not terminate or suspend
  292  access to, or downloads of, the electronic will by the testator.
  293         (11) Upon receiving information that the testator is dead,
  294  a qualified custodian must deposit the electronic will with the
  295  court in accordance with s. 732.901. A qualified custodian may
  296  not charge a fee for depositing the electronic will with the
  297  clerk, providing the affidavits made in accordance with s.
  298  732.503, or furnishing in writing any information requested by a
  299  court under paragraph (1)(d).
  300         (12)Except as provided in this act, a qualified custodian
  301  must at all times keep information provided by the testator
  302  confidential and may not disclose such information to any third
  303  party.
  304         Section 10. Section 733.201, Florida Statutes is amended to
  305  read:
  306         733.201 Proof of wills.—
  307         (1) Self-proved wills executed in accordance with this code
  308  may be admitted to probate without further proof.
  309         (2) A will, other than an electronic will, may be admitted
  310  to probate upon the oath of any attesting witness taken before
  311  any circuit judge, commissioner appointed by the court, or
  312  clerk.
  313         (3) If it appears to the court that the attesting witnesses
  314  cannot be found or that they have become incapacitated after the
  315  execution of the will or their testimony cannot be obtained
  316  within a reasonable time, a will, other than an electronic will,
  317  may be admitted to probate upon the oath of the personal
  318  representative nominated by the will as provided in subsection
  319  (2), whether or not the nominated personal representative is
  320  interested in the estate, or upon the oath of any person having
  321  no interest in the estate under the will stating that the person
  322  believes the writing exhibited to be the true last will of the
  323  decedent.
  324         (4)If an electronic will, including an electronic will
  325  whose execution included the use of a video conference under s.
  326  732.525(1)(b), is not self-proved, an electronic will may be
  327  admitted to probate upon the oath of the two attesting witnesses
  328  for the electronic will taken before any circuit judge, any
  329  commissioner appointed by the court, or the clerk. If it appears
  330  to the court that the attesting witnesses cannot be found, that
  331  they have become incapacitated after the execution of the
  332  electronic will, or that their testimony cannot be obtained
  333  within a reasonable time, an electronic will may be admitted to
  334  probate upon the oath of two disinterested witnesses providing
  335  all of the following information:
  336         (a)The date on which the electronic will was created, if
  337  the date is not indicated in the electronic will itself.
  338         (b)When and how the electronic will was discovered, and by
  339  whom.
  340         (c)All of the people who had access to the electronic
  341  will.
  342         (d)The method by which the electronic will was stored and
  343  the safeguards that were in place to prevent alterations to the
  344  electronic will.
  345         (e)A statement as to whether the electronic will has been
  346  altered since its creation.
  347         (f)A statement that the electronic will is a true,
  348  correct, and complete tangible manifestation of the testator’s
  349  will.
  350         (g)If the execution of an electronic will included the use
  351  of a video conference under s. 732.525(1)(b), a statement as to
  352  whether a recording of the video conference is available for
  353  inspection by the court or cannot be found after a diligent
  354  search.
  355         (5)A paper copy of an electronic will which is a true and
  356  correct copy of the electronic will may be offered for and
  357  admitted to probate and shall constitute an “original” of the
  358  electronic will.
  359         Section 11. Paragraph (b) of subsection (2) of section
  360  736.0403, Florida Statutes, is amended to read:
  361         736.0403 Trusts created in other jurisdictions; formalities
  362  required for revocable trusts.—
  363         (2) Notwithstanding subsection (1):
  364         (b) The testamentary aspects of a revocable trust, executed
  365  by a settlor who is a domiciliary of this state at the time of
  366  execution, are invalid unless the trust instrument is executed
  367  by the settlor with the formalities required for the execution
  368  of a will under s. 732.502 or an electronic will under s.
  369  732.523 which is self-proved; however, the qualified custodian
  370  of the trust instrument may not also be a trustee of the trust
  371  in this state. For purposes of this subsection, the term
  372  “testamentary aspects” means those provisions of the trust
  373  instrument that dispose of the trust property on or after the
  374  death of the settlor other than to the settlor’s estate.
  375  
  376  ================= T I T L E  A M E N D M E N T ================
  377  And the title is amended as follows:
  378         Delete lines 5 - 56
  379  and insert:
  380         732.506, F.S.; excluding electronic wills from
  381         specified methods to revoke a will; creating s.
  382         732.521, F.S.; providing a short title; creating s.
  383         732.522, F.S.; defining terms; creating s. 732.523,
  384         F.S.; specifying requirements that must be satisfied
  385         in the execution of electronic wills; creating s.
  386         732.524, F.S.; providing requirements for self-proof
  387         of electronic wills; creating s. 732.525, F.S.;
  388         specifying the circumstances under which a person is
  389         deemed to be in the presence of or appearing before
  390         another person; providing that an electronic record
  391         satisfies the requirement that a record be in writing;
  392         providing that an electronic signature satisfies the
  393         requirement that a document be signed; providing
  394         requirements for certain documents to be deemed
  395         executed in this state; creating s. 732.526, F.S.;
  396         authorizing an electronic will of a nonresident of
  397         this state which is properly executed in this or
  398         another state to be offered for and admitted to
  399         probate in this state; providing the venue for the
  400         probate of such electronic will; creating s. 732.527,
  401         F.S.; specifying requirements for service as a
  402         qualified custodian; requiring qualified custodians to
  403         provide access to or information concerning the
  404         electronic will, or the electronic record containing
  405         the electronic will, only to specified persons or as
  406         directed by a court; authorizing a qualified custodian
  407         to destroy the electronic record of an electronic will
  408         after a certain date; providing conditions under which
  409         a qualified custodian may cease serving as a qualified
  410         custodian; requiring a qualified custodian to cease
  411         serving in such capacity upon the written request of
  412         the testator; requiring that a successor qualified
  413         custodian agree in writing to serve in that capacity
  414         for an electronic will before succeeding to office;
  415         specifying what constitutes an affidavit of a
  416         qualified custodian; requiring a qualified custodian
  417         to deliver certain documents upon request from the
  418         testator; prohibiting a qualified custodian from
  419         charging the testator a fee for such documents under
  420         certain circumstances; providing that a qualified
  421         custodian is liable for certain damages under certain
  422         circumstances; prohibiting a qualified custodian from
  423         terminating or suspending access to, or downloads of,
  424         an electronic will by the testator; requiring a
  425         qualified custodian to deposit an electronic will with
  426         the court upon receiving information that the testator
  427         is dead; prohibiting a qualified custodian from
  428         charging a fee for certain actions taken upon the
  429         death of the testator; requiring a qualified custodian
  430         to keep certain information confidential; amending s.
  431         733.201, F.S.; providing for the proof of electronic
  432         wills; providing requirements for admitting an
  433         electronic will that is not self-proved into probate;
  434         providing that a paper copy of an electronic will
  435         constitutes an “original” of the electronic will
  436         subject to certain conditions; amending s. 736.0403,
  437         F.S.; providing that, for purposes of establishing the
  438         validity of the testamentary aspects of a revocable
  439         trust, the qualified custodian of the trust instrument
  440         may not also be a trustee of the trust; providing
  441         applicability; providing an