Florida Electronic Wills: Understanding the Role of a Qualified Custodian

Florida has been a leader in modernizing estate planning. With the adoption of Florida Statute §732.521–732.525, the state became one of the first in the country to recognize electronic wills. These laws provide Floridians with an alternative to the traditional pen-and-paper approach to estate planning. While electronic wills offer convenience and accessibility, they also come with unique requirements—particularly around who can safeguard them.

One of the most important aspects of Florida’s electronic wills law is the role of the qualified custodian. Without properly following the rules around custody, an electronic will might not be valid in probate. Below, we explain what a qualified custodian is, why it matters, and what pitfalls to avoid.

What Is a Qualified Custodian?

When someone creates a traditional paper will, the signed original document is what matters most. For electronic wills, the law had to answer a new question: how do you protect the integrity of a digital document?

Florida law requires that an electronic will be deposited with a qualified custodian. This is not simply a family member saving the will on a flash drive or storing it in the cloud. Instead, the statute outlines strict standards to ensure that the electronic will remains authentic and tamper-proof.

A qualified custodian must:

• Be authorized to store electronic wills under Florida law.

• Keep custody of the electronic will at all times following its execution.

• Deliver the will to the court or the personal representative within 30 days of receiving notice of the testator’s death.

• File an affidavit swearing that the will has been safeguarded, was not altered, and was kept continuously in their custody.

These safeguards help ensure that the will is authentic and that the deceased’s final wishes are respected.

Who Can—and Cannot—Be a Qualified Custodian

Not everyone can serve as a qualified custodian. In fact, many people’s first instinct—to have a family member or close friend keep the will—is not permitted.

Under Florida Statute §732.524, custodians must be third-party businesses that meet the legal requirements. Importantly, beneficiaries of the will cannot serve as custodians, since that would create a conflict of interest. This prevents situations where someone with a personal stake in the estate has control over the authenticity of the document.

Qualified custodians are typically professional service providers who are bonded, insured, and structured to meet the statutory requirements. They are also subject to Florida court oversight if questions arise about the safekeeping of the document.

Why Custody Rules Matter

The rules around custody may feel strict, but they exist for good reason. Let’s look at a hypothetical example.

Imagine that Sarah, a Florida resident, creates an electronic will leaving her vacation home in Daytona Beach to her son, Alex. She names her daughter, Mia, as her personal representative. Wanting to keep things simple, Sarah gives Mia a copy of the electronic will and tells her to “keep it safe.”

When Sarah passes away, Mia brings the electronic file to probate court. However, because Mia is both a beneficiary and not a legally recognized custodian, the court cannot treat the document as an “original” will. Instead, the electronic will may be considered a lost or destroyed will, which requires a much more complicated probate process. This not only delays distribution of Sarah’s estate but also risks disputes among family members.

This example highlights why it’s so important to use a qualified custodian from the start.

Benefits and Drawbacks of Electronic Wills

Electronic wills are convenient, especially for those who prefer to complete their estate planning remotely. They allow for electronic signing and witnessing, which became especially valuable during times when in-person meetings were difficult, such as the COVID-19 pandemic.

However, electronic wills are not necessarily the best choice for everyone. Some families find comfort in the tradition of a paper will, and others prefer the simplicity of avoiding the custodian requirements. For those who do choose electronic wills, it is essential to follow Florida’s law precisely to avoid probate complications later.

How to Protect Your Estate Plan

If you are considering an electronic will, here are a few steps to ensure your plan is secure:

1. Consult with an attorney: An experienced Florida estate planning attorney can explain whether an electronic will is the right choice for your circumstances.

2. Understand the custodian requirement: Make sure you know who will serve as the qualified custodian and what their responsibilities are.

3. Avoid naming beneficiaries as custodians: This can invalidate the electronic will as an original.

4. Review your plan regularly: Whether you use a paper will or an electronic one, it’s important to update your estate planning documents as your life and family circumstances change.

Electronic wills in Florida offer an innovative option for estate planning, but they come with strict rules that must be carefully followed. At The Soto Law Office, we help clients decide whether an electronic will or a traditional paper will makes the most sense for their unique needs. If you have questions about Florida electronic wills or want to update your estate plan, contact us today at (321) 972-2279 or visit www.TheSotoLawOffice.com. Let us help you create a plan that is both modern and legally sound, ensuring your wishes are honored and your loved ones are protected.