Don't Wait for a Crisis to Do Your Estate Planning!

I always seem to get requests for estate planning work in April because many of our clients spend the summers in another state.  Sometimes the call is, "I'm heading back to _______ on Saturday and I need you to update my will before I leave."  In one case, the caller was actually on the way to the airport!  In addition to those types of situations, we now have "social distancing" which makes signing estate planning documents more complicated, especially for clients with health problems.  So why can't we just skip all the formalities and make estate planning documents easy to execute? Well, there are a lot of good reasons.    

Because estate planning documents are so critical, there are strict requirements for signing.  It is not as simple as signing a tax return or a real estate contract. Florida is particularly protective to make sure that when you sign a will, trust, power of attorney, or health care directive, that you have the mental capacity to understand and express your wishes, that you are not being influenced by anyone, and that your true wishes are reflected in the documents.  As a result, two witnesses are required on each document, and some also require a notary acknowledgment.  Failure to follow the procedures can make the documents invalid.  The laws are different in each state, so we discourage our clients from signing Florida estate planning documents in another state.  I’ve been involved in several cases where estate planning documents would have been valid in the place where they were signed, but they were not valid for a Florida resident because the Florida requirements were not followed.

To sign the documents in another state, you would have to have 2 witnesses and a notary who all watch you sign and sign in your presence. Florida does have a remote notary law that allows online notarization, but that does not work for a will, trust or power of attorney.  The online notary process is very involved, and is not as simple as connecting with a notary on Facetime or Zoom.  It requires a Florida notary who is authorized to conduct online notarizations and you must have a high speed internet connection with video and audio capabilities on your computer.

On July 1^st, a new Florida law goes into effect that would allow the online signing of wills, trusts and powers of attorney.  Again, this requires the involvement of a vender authorized to provide online will services and the technology to permanently store the video of the signing and the electronic document in a tamper-proof electronic format.  Two witnesses and an authorized online notary are still required.

Although many banks have not opened their lobbies yet, we’ve heard that most banks will not help with notarizing and witnessing estate planning documents.  They have learned that the signing procedures are so critical, and that litigation over estate planning documents is so common now, that it just is not worth the risk of being pulled into a lawsuit.

If you are able to coordinate two witnesses and a notary, we could provide original documents for you to sign with detailed signing instructions.  Few non-lawyers are familiar with the procedures and signing requirements for estate planning documents.  They are very easy to mess up. If you decide to do that, I would encourage you to resign the documents after you return to Florida.