Monday, October 28, 2019
Electronic Notarization and Electronic Wills come to Florida
In a recent article Florida Bar Journal by Sarah S. Butters and Jenna G. Rubin, the authors discuss the recent Florida legislation that authorizes online notarization and electronic wills. The Florida legislature attempted to create a balance between the convenience of online transactions and the safeguards necessary to ensure the validity of online notarization and the protection of vulnerable adults who may choose to conduct their planning through the use of electronic wills. The legislation includes procedures to verify the identity of the person signing the online document. Florida notaries will be required to follow new procedures, utilize authorized technology and comply with education requirements. The portion of the law relating to online notarization takes effect January 1, 2020, while the portion covering electronic wills takes effect on July 1, 2020. As the linked article points out, Florida adopted the Uniform Electronic Transaction Act in 2000 and the Uniform Real Property Electronic Recording Act in 2007.
https://www.floridabar.org/the-florida-bar-journal/danger-will-robinson-the-new-frontier-of-remote-online-notarization-and-electronic-wills/
Tuesday, October 8, 2019
The importance of title to homestead property "vesting" at the instant of the owner's death.
Decisions involving Florida's homestead protections continue to show the need for careful analysis of the probate issues when a Florida resident dies owning a primary residence. The protections in the Florida Constitution have protected families since at least 1868, but continue to perplex planners and probate attorneys. In a recent case, the parties signed consents for an order involving a homestead residence. The order was not consistent with the deceased owner's Last Will and Testament. The appeals court reminded us about one of the cardinal rules for homestead issues in probate proceedings: Title vests at the moment of death; the will (or the laws of intestacy) controls the transfer of ownership at death and an incorrect homestead ruling by the court does not change the vesting of title. Without an proper agreement among heirs altering the disposition in the will, consenting to a petition in a probate proceeding does not alter the ownership interests of the heirs that vested at the instant of the owner's death. The decision in Mullins v. Mullins can be found here: https://www.5dca.org/content/download/526765/5852394/file/181672_1260_06072019_08253237_i.pdf
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Donor advised funds are a great option for estate planners to discuss with their clients. Professor Beyer's blog includes a link to a helpful article on donor advised funds which discusses the advantages this planning tool. Community foundations, like the Manatee Community Foundation in my home town, can help establish a donor advised fund, offering a good option for charitably-inclined clients who don't have the level of wealth to support a private foundation.