Bill Text: FL S0848 | 2021 | Regular Session | Introduced


Bill Title: Electronic Legal Documents

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2021-04-22 - Laid on Table, companion bill(s) passed, see HB 483 (Ch. 2021-205) [S0848 Detail]

Download: Florida-2021-S0848-Introduced.html
       Florida Senate - 2021                                     SB 848
       
       
        
       By Senator Powell
       
       
       
       
       
       30-00743B-21                                           2021848__
    1                        A bill to be entitled                      
    2         An act relating to electronic legal documents;
    3         amending s. 117.201, F.S.; revising the definition of
    4         the term “online notarization”; amending s. 117.285,
    5         F.S.; clarifying that supervising the witnessing of an
    6         electronic record by an online notary public is a
    7         notarial act; specifying applicability of online
    8         notarization procedures to supervision of the
    9         witnessing of an electronic record; modifying
   10         witnessing procedures; revising applicability;
   11         amending s. 709.2119, F.S.; revising the statutory
   12         form for an affidavit for acceptance of and reliance
   13         upon a power of attorney to reflect means of
   14         notarization; amending s. 732.401, F.S.; revising the
   15         statutory form for the notice of election relating to
   16         the descent of homestead property to reflect means of
   17         notarization; amending s. 732.503, F.S.; revising the
   18         statutory form for the self-proof of a will or codicil
   19         to reflect means of notarization; amending s. 732.521,
   20         F.S.; conforming a cross-reference; amending s.
   21         732.703, F.S.; revising statutory forms relating to
   22         the disposition of certain assets at death to reflect
   23         means of notarization; amending s. 747.051, F.S.;
   24         revising the form for a petition of summary relief for
   25         the sale or transfer of certain property owned by an
   26         absentee to reflect means of notarization; providing
   27         for construction and retroactive application;
   28         providing an effective date.
   29          
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Subsection (9) of section 117.201, Florida
   33  Statutes, is amended to read:
   34         117.201 Definitions.—As used in this part, the term:
   35         (9) “Online notarization” means the performance of a
   36  notarial act using electronic means in which the principal or
   37  any witness appears before the notary public by means of audio
   38  video communication technology.
   39         Section 2. Section 117.285, Florida Statutes, is amended to
   40  read:
   41         117.285 Supervising the witnessing of electronic records.
   42  Supervising the witnessing of an electronic record by an online
   43  notary public in accordance with this section is a notarial act.
   44  An online notary public may supervise the witnessing of
   45  electronic records by complying with the online notarization
   46  procedures of this part and using the same audio-video
   47  communication technology used for online notarization by a
   48  principal, as follows:
   49         (1) The witness may be in the physical presence of the
   50  principal or remote from the principal provided the witness and
   51  principal are using audio-video communication technology.
   52         (2) If the witness is remote from the principal and viewing
   53  and communicating with the principal by means of audio-video
   54  communication technology, the principal’s and witness’s
   55  identities identity must be verified in accordance with the
   56  procedures for identifying a principal as set forth in s.
   57  117.265(4). If the witness is in the physical presence of the
   58  principal, the witness must confirm his or her identity by
   59  stating his or her name and current address on the audio-video
   60  recording as part of the act of witnessing.
   61         (3) The act of witnessing an electronic signature means the
   62  witness is either in the physical presence of the principal or
   63  present through audio-video communication technology at the time
   64  the principal affixes the electronic signature and the witness
   65  hears the principal make a statement to the effect that the
   66  principal has signed the electronic record.
   67         (4) A witness remote from the principal and appearing
   68  through audio-video communication technology must verbally
   69  confirm that he or she is a resident of and physically located
   70  within the United States or a territory of the United States at
   71  the time of witnessing.
   72         (5) Notwithstanding subsections (2) and (3), if an
   73  electronic record to be signed is a will under chapter 732, a
   74  revocable trust with testamentary aspects as described in s.
   75  736.0403(2)(b) under chapter 736, a health care advance
   76  directive, an agreement concerning succession or a waiver of
   77  spousal rights under s. 732.701 or s. 732.702, respectively, or
   78  a power of attorney authorizing any of the transactions
   79  enumerated in s. 709.2208, all of the following apply when fewer
   80  than two witnesses are in the physical presence of the principal
   81  shall apply:
   82         (a) Prior to facilitating witnessing of an instrument by
   83  means of audio-video communication technology, a RON service
   84  provider shall require the principal to answer the following
   85  questions in substantially the following form:
   86         1. Are you under the influence of any drug or alcohol today
   87  that impairs your ability to make decisions?
   88         2. Do you have any physical or mental condition or long
   89  term disability that impairs your ability to perform the normal
   90  activities of daily living?
   91         3. Do you require assistance with daily care?
   92         (b) If any question required under paragraph (a) is
   93  answered in the affirmative, the principal’s signature on the
   94  instrument may only be validly witnessed by witnesses in the
   95  physical presence of the principal at the time of signing.
   96         (c) Subsequent to submission of the answers required under
   97  paragraph (a), the RON service provider shall give the principal
   98  written notice in substantially the following form:
   99  
  100  NOTICE: If you are a vulnerable adult as defined in s. 415.102,
  101  Florida Statutes, the documents you are about to sign are not
  102  valid if witnessed by means of audio-video communication
  103  technology. If you suspect you may be a vulnerable adult, you
  104  should have witnesses physically present with you before
  105  signing.
  106  
  107         (d) The act of witnessing an electronic signature through
  108  the witness’s presence by audio-video communication technology
  109  is valid only if, during the audio-video communication, the
  110  principal provides verbal answers to all of the following
  111  questions, each of which must be asked by the online notary
  112  public in substantially the following form:
  113         1. Are you currently married? If so, name your spouse.
  114         2. Please state the names of anyone who assisted you in
  115  accessing this video conference today.
  116         3. Please state the names of anyone who assisted you in
  117  preparing the documents you are signing today.
  118         4. Where are you currently located?
  119         5. Who is in the room with you?
  120         (e) An online notary public shall consider the responses to
  121  the questions specified in paragraph (d) in carrying out of the
  122  duties of a notary public as set forth in s. 117.107(5).
  123         (f) A principal’s responses to the questions in paragraphs
  124  (a) and (d) may be offered as evidence regarding the validity of
  125  the instrument, but an incorrect answer may not serve as the
  126  sole basis to invalidate an instrument.
  127         (g) The presence of a witness with the principal at the
  128  time of signing by means of audio-video communication technology
  129  is not effective for witnessing the signature of a principal who
  130  is a vulnerable adult as defined in s. 415.102. The contestant
  131  of an electronic record has the burden of proving that the
  132  principal was a vulnerable adult at the time of executing the
  133  electronic record.
  134         (h) Nothing in this subsection shall:
  135         1. Preclude a power of attorney, which includes banking or
  136  investment powers enumerated in s. 709.2208, from being
  137  effective with respect to any other authority granted therein or
  138  with respect to the agent’s authority in connection with a real
  139  property, commercial, or consumer transaction or loan, to
  140  exercise any power specified therein or to execute and deliver
  141  instruments obligating the principal or to draw upon the
  142  proceeds of such transaction or loan; or
  143         2. Affect the nontestamentary aspects of a revocable trust
  144  under chapter 736.
  145         (i) The electronic record containing an instrument signed
  146  by witnesses who were present with the principal by means of
  147  audio-video communication technology shall contain a perceptible
  148  indication of their presence by such means.
  149         (j) Nothing in This subsection does not shall affect the
  150  application of s. 709.2119.
  151         (k) The requirements of this subsection do not apply if
  152  there are at least two witnesses in the physical presence of the
  153  principal at the time of the notarial act.
  154         (6) Pursuant to subpoena, court order, an authorized law
  155  enforcement inquiry, or other lawful request, a RON service
  156  provider or online notary public shall provide:
  157         (a) The last known address of each witness who witnessed
  158  the signing of an electronic record using audio-video
  159  communication technology under this section.
  160         (b) A principal’s responses to the questions in paragraph
  161  (5)(a) or paragraph (5)(d) (5)(b), as applicable.
  162         (c) An uninterrupted and unedited copy of the recording of
  163  the audio-video communication in which an online notarization is
  164  performed.
  165         (7) Except as set forth in s. 709.2202, an act of
  166  witnessing performed pursuant to this section satisfies any
  167  requirement that the witness must be a subscribing or attesting
  168  witness or must be in the presence of the principal at the time
  169  of signing.
  170         (8) The law of this state governs the validity of
  171  witnessing supervised by an online notary public pursuant to
  172  this section, regardless of the physical location of the witness
  173  at the time of witnessing. State and federal courts in this
  174  state have subject matter jurisdiction over any dispute arising
  175  out of an act of witnessing pursuant to this section, and may
  176  issue subpoenas for records or to require the appearance of
  177  witnesses in relation thereto in accordance with applicable law.
  178         Section 3. Paragraph (c) of subsection (2) of section
  179  709.2119, Florida Statutes, is amended to read:
  180         709.2119 Acceptance of and reliance upon power of
  181  attorney.—
  182         (2) A third person may require:
  183         (c) A written affidavit executed by the agent under this
  184  subsection which may, but need not, be in the following form:
  185  
  186  STATE OF............
  187  COUNTY OF............
  188  
  189         Before me, the undersigned authority, personally appeared
  190  ...(agent)... (“Affiant”) by the means specified herein, who
  191  swore or affirmed that:
  192         1. Affiant is the agent named in the Power of Attorney
  193  executed by ...(principal)... (“Principal”) on ...(date)....
  194         2. This Power of Attorney is currently exercisable by
  195  Affiant. The principal is domiciled in ...(insert name of state,
  196  territory, or foreign country)....
  197         3. To the best of Affiant’s knowledge after diligent search
  198  and inquiry:
  199         a. The Principal is not deceased;
  200         b. Affiant’s authority has not been suspended by initiation
  201  of proceedings to determine incapacity or to appoint a guardian
  202  or a guardian advocate;
  203         c. Affiant’s authority has not been terminated by the
  204  filing of an action for dissolution or annulment of Affiant’s
  205  marriage to the principal, or their legal separation; and
  206         d. There has been no revocation, or partial or complete
  207  termination, of the power of attorney or of Affiant’s authority.
  208         4. Affiant is acting within the scope of authority granted
  209  in the power of attorney.
  210         5. Affiant is the successor to ...(insert name of
  211  predecessor agent)..., who has resigned, died, become
  212  incapacitated, is no longer qualified to serve, has declined to
  213  serve as agent, or is otherwise unable to act, if applicable.
  214         6. Affiant agrees not to exercise any powers granted by the
  215  Power of Attorney if Affiant attains knowledge that the power of
  216  attorney has been revoked, has been partially or completely
  217  terminated or suspended, or is no longer valid because of the
  218  death or adjudication of incapacity of the Principal.
  219  
  220  ................
  221  ...(Affiant)...
  222  
  223         Sworn to (or affirmed) and subscribed before me by means of
  224  ☐ physical presence or ☐ online notarization this .... day of
  225  ...(month)..., ...(year)..., by ...(name of person making
  226  statement)...
  227  
  228  ...(Signature of Notary Public-State of Florida)...
  229  
  230  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  231  
  232  Personally Known OR Produced Identification
  233  ...(Type of Identification Produced)...
  234  
  235         Section 4. Paragraph (e) of subsection (2) of section
  236  732.401, Florida Statutes, is amended to read:
  237         732.401 Descent of homestead.—
  238         (2) In lieu of a life estate under subsection (1), the
  239  surviving spouse may elect to take an undivided one-half
  240  interest in the homestead as a tenant in common, with the
  241  remaining undivided one-half interest vesting in the decedent’s
  242  descendants in being at the time of the decedent’s death, per
  243  stirpes.
  244         (e) The election must shall be made by filing a notice of
  245  election containing the legal description of the homestead
  246  property for recording in the official record books of the
  247  county or counties where the homestead property is located. The
  248  notice must be in substantially the following form:
  249  
  250                    ELECTION OF SURVIVING SPOUSE                   
  251                   TO TAKE A ONE-HALF INTEREST OF                  
  252                       DECEDENT’S INTEREST IN                      
  253                         HOMESTEAD PROPERTY                        
  254  
  255  STATE OF........
  256  COUNTY OF........
  257  
  258         1. The decedent, ................, died on ............. On
  259  the date of the decedent’s death, the decedent was married to
  260  ............, who survived the decedent.
  261         2. At the time of the decedent’s death, the decedent owned
  262  an interest in real property that the affiant believes to be
  263  homestead property described in s. 4, Article X of the State
  264  Constitution, which real property being in ........ County,
  265  Florida, and described as: ...(description of homestead
  266  property)....
  267         3. Affiant elects to take one-half of decedent’s interest
  268  in the homestead as a tenant in common in lieu of a life estate.
  269         4. If affiant is not the surviving spouse, affiant is the
  270  surviving spouse’s attorney in fact or guardian of the property,
  271  and an order has been rendered by a court having jurisdiction of
  272  the real property authorizing the undersigned to make this
  273  election.
  274  
  275  ............
  276  ...(Affiant)...
  277  
  278  Sworn to (or affirmed) and subscribed before me by means of ☐
  279  physical presence or ☐ online notarization this .... day of
  280  ...(month)..., ...(year)..., by ...(affiant)...
  281  
  282  ...(Signature of Notary Public-State of Florida)...
  283  
  284  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  285  
  286  Personally Known OR Produced Identification
  287  
  288  ...(Type of Identification Produced)...
  289  
  290         Section 5. Subsection (1) of section 732.503, Florida
  291  Statutes, is amended to read:
  292         732.503 Self-proof of will.—
  293         (1) A will or codicil executed in conformity with s.
  294  732.502 may be made self-proved at the time of its execution or
  295  at any subsequent date by the acknowledgment of it by the
  296  testator and the affidavits of the witnesses, made before an
  297  officer authorized to administer oaths and evidenced by the
  298  officer’s certificate attached to or following the will, in
  299  substantially the following form:
  300  
  301  STATE OF........ FLORIDA
  302  COUNTY OF ....
  303         I,............, declare to the officer taking my
  304  acknowledgment of this instrument, and to the subscribing
  305  witnesses, that I signed this instrument as my will.
  306  
  307                      ........................                     
  308                              Testator                             
  309  
  310         We,........and........, have been sworn by the officer
  311  signing below, and declare to that officer on our oaths that the
  312  testator declared the instrument to be the testator’s will and
  313  signed it in our presence and that we each signed the instrument
  314  as a witness in the presence of the testator and of each other.
  315  
  316                      ........................                     
  317                               Witness                             
  318  
  319                      ........................                     
  320                               Witness                             
  321  
  322         Acknowledged and subscribed before me by means of ☐
  323  physical presence or ☐ online notarization by the testator,
  324  (type or print testator’s name), who  is personally known to me
  325  or  who has produced (state type of identification—see s.
  326  117.05(5)(b)2.) as identification, and sworn to and subscribed
  327  before me by each of the following witnesses:, (type or print
  328  name of first witness) who  is personally known to me or  who
  329  has produced (state type of identification—see s.
  330  117.05(5)(b)2.) as identification, by means of ☐ physical
  331  presence or ☐ online notarization; and (type or print name of
  332  second witness) who  is personally known to me or  who has
  333  produced (state type of identification—see s. 117.05(5)(b)2.) as
  334  identification, by means of ☐ physical presence or ☐ online
  335  notarization. and Subscribed by me in the presence of the
  336  testator and the subscribing witnesses, by the means specified
  337  herein, all on (date).
  338  ...(Signature of Officer)...
  339  ...(Print, type, or stamp commissioned name and affix official
  340  seal)...
  341  
  342         Section 6. Subsection (7) of section 732.521, Florida
  343  Statutes, is amended to read:
  344         732.521 Definitions.—As used in ss. 732.521-732.525, the
  345  term:
  346         (7) “Qualified custodian” means a person who meets the
  347  requirements of s. 732.524(1) s. 732.525(1).
  348         Section 7. Paragraph (b) of subsection (5) of section
  349  732.703, Florida Statutes, is amended to read:
  350         732.703 Effect of divorce, dissolution, or invalidity of
  351  marriage on disposition of certain assets at death.—
  352         (5) In the case of an asset described in paragraph (3)(a),
  353  paragraph (3)(b), or paragraph (3)(c), unless payment or
  354  transfer would violate a court order directed to, and served as
  355  required by law on, the payor:
  356         (b) As to any portion of the asset required by the
  357  governing instrument to be paid after the decedent’s death to a
  358  primary beneficiary explicitly designated in the governing
  359  instrument as the decedent’s spouse:
  360         1. If the death certificate states that the decedent was
  361  married at the time of his or her death to that spouse, the
  362  payor is not liable for making a payment on account of, or for
  363  transferring an interest in, that portion of the asset to such
  364  primary beneficiary.
  365         2. If the death certificate states that the decedent was
  366  not married at the time of his or her death, or if the death
  367  certificate states that the decedent was married to a person
  368  other than the spouse designated as the primary beneficiary at
  369  the time of his or her death, the payor is not liable for making
  370  a payment on account of, or for transferring an interest in,
  371  that portion of the asset to a secondary beneficiary under the
  372  governing instrument.
  373         3. If the death certificate is silent as to the decedent’s
  374  marital status at the time of his or her death, the payor is not
  375  liable for making a payment on account of, or for transferring
  376  an interest in, that portion of the asset to the primary
  377  beneficiary upon delivery to the payor of an affidavit validly
  378  executed by the primary beneficiary in substantially the
  379  following form:
  380  
  381         STATE OF............
  382         COUNTY OF............
  383  
  384         Before me, the undersigned authority, personally
  385         appeared by the means specified herein, ...(type or
  386         print Affiant’s name)... (“Affiant”), who swore or
  387         affirmed that:
  388         1. ...(Type or print name of Decedent)...
  389         (“Decedent”) died on ...(type or print the date of the
  390         Decedent’s death)....
  391         2. Affiant is a “primary beneficiary” as that
  392         term is defined in Section 732.703, Florida Statutes.
  393         Affiant and Decedent were married on ...(type or print
  394         the date of marriage)..., and were legally married to
  395         one another on the date of the Decedent’s death.
  396  ...(Affiant)...
  397         Sworn to or affirmed before me by means of ☐
  398         physical presence or ☐ online notarization by the
  399         affiant who  is personally known to me or  who has
  400         produced ...(state type of identification)... as
  401         identification this .... day of ...(month)...,
  402         ...(year)....
  403         ...(Signature of Officer)...
  404         ...(Print, Type, or Stamp Commissioned name of Notary
  405         Public)...
  406  
  407         4. If the death certificate is silent as to the decedent’s
  408  marital status at the time of his or her death, the payor is not
  409  liable for making a payment on account of, or for transferring
  410  an interest in, that portion of the asset to the secondary
  411  beneficiary upon delivery to the payor of an affidavit validly
  412  executed by the secondary beneficiary affidavit in substantially
  413  the following form:
  414  
  415         STATE OF............
  416         COUNTY OF............
  417  
  418         Before me, the undersigned authority, personally
  419         appeared by the means specified herein, ...(type or
  420         print Affiant’s name)... (“Affiant”), who swore or
  421         affirmed that:
  422         1. ...(Type or print name of Decedent)...
  423         (“Decedent”) died on ...(type or print the date of the
  424         Decedent’s death)....
  425         2. Affiant is a “secondary beneficiary” as that
  426         term is defined in Section 732.703, Florida Statutes.
  427         On the date of the Decedent’s death, the Decedent was
  428         not legally married to the spouse designated as the
  429         “primary beneficiary” as that term is defined in
  430         Section 732.703, Florida Statutes.
  431  
  432  ...(Affiant)...
  433         Sworn to or affirmed before me by means of ☐
  434         physical presence or ☐ online notarization by the
  435         affiant who  is personally known to me or  who has
  436         produced ...(state type of identification)... as
  437         identification this .... day of ...(month)...,
  438         ...(year)....
  439         ...(Signature of Officer)...
  440         ...(Print, Type, or Stamp Commissioned name of Notary
  441         Public)...
  442  
  443         Section 8. Subsection (1) of section 747.051, Florida
  444  Statutes, is amended to read:
  445         747.051 Summary procedure.—
  446         (1) If the wife of any person defined as an absentee in s.
  447  747.01(1), or his next of kin if said absentee has no wife,
  448  shall wish to sell or transfer any property of the absentee
  449  which has a gross value of less than $5,000, or shall require
  450  the consent of the absentee in any matter regarding the
  451  absentee’s children or in any other matter in which the gross
  452  value of the subject matter is less than $5,000, she may apply
  453  to the circuit court for an order authorizing said sale,
  454  transfer, or consent without opening a full conservatorship
  455  proceeding as provided by this chapter. She may make the
  456  application without the assistance of an attorney. Said
  457  application shall be made by petition on the following form,
  458  which form shall be made readily available to the applicant by
  459  the clerk of the circuit court:
  460  
  461                        In the Circuit Court                       
  462  
  463  In re: ...(Absentee)..., case number .....
  464  
  465                     PETITION FOR SUMMARY RELIEF                   
  466  
  467  Petitioner, ...(Name)..., whose residence is ...(Street &
  468  number)..., ...(City or town)..., and ...(County)..., Florida,
  469  and who is the ...(Describe relationship to absentee)... of the
  470  absentee, ...(Name)..., states that the absentee has been
  471  ...(Imprisoned or missing in action)... since ...(Date)... when
  472  ...(Describe details).... Petitioner desires to sell/transfer
  473  ...(Describe property)... of the value of ...(Value)... because
  474  ...(Give reasons).... The terms of sale/transfer are ...(Give
  475  reasons).... Petitioner requires the consent of the absentee for
  476  the purpose of .....
  477  ...(Petitioner)...
  478  State of .... Florida
  479  County of....
  480  
  481         Sworn to (or affirmed) and subscribed before me by means of
  482  ☐ physical presence or ☐ online notarization this .... day of
  483  ........, ...(year)..., by ...(name of person making
  484  statement)....
  485  
  486  ...(Signature of Notary Public - State of Florida)...
  487  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  488         Personally Known ........ OR Produced Identification 	
  489         Type of Identification Produced..........................
  490  
  491         Section 9. The amendments made by this act are remedial in
  492  nature and shall apply retroactively to January 1, 2020.
  493         Section 10. This act shall take effect upon becoming a law.

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