probate rules committee - The Florida Bar

PROBATE RULES COMMITTEE SUBCOMMITTEE D

AGENDA SEPTEMBER 9, 2021

Call in Number: 888-376-5050

Access Code: 3698 547 852#

I. Call to Order.

II. Referral. Discuss July 16, 2021, referral re: electronic wills. III. Adjourn.

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Alexandra V Rieman

From: Cady Huss <[email protected]>Sent: Friday, July 16, 2021 2:39 PMTo: Alexandra V Rieman; [email protected]; 'Frederick L. Hearn'; '[email protected]'; 'Kenneth

Pratt'; '[email protected]'; Zack ZurowesteCc: 'Morris, Benjamin'; 'Godwin, Krys'Subject: PRC - Subcommittee DAttachments: FW:

Good afternoon PRC Subcommittee D,

To follow up on Ben’s email of earlier today. Your subcommittee includes:

Alexandra Rieman, Chair Erin Finlen Frederick Hearn Saidin Hernandez Kenneth Pratt Phyllis Taite Zackary Zuroweste

Everyone is copied on this email. After our June meeting, Subcommittee D had no pending projects but we have a new referral for you. The RPPTL Section, and particularly the Ad Hoc E‐Wills Committee, has requested that the PRC review probate forms for when an electronic will is being admitted. Currently, our forms address only the requirements for traditional wills and not the requirements for e‐wills. See Jenna’s email on the topic attached. Ricky Hearn is a Vice‐Chair of the E‐Wills Committee and will be a liaison on this issue for us. He can outline the matter in greater detail when you get together. We will expect a report at our next meeting and Ben will be following up to see how it’s coming along.

Thank you for all your work on the Probate Rules Committee!

Cady L. Huss Attorney

SPIVEY & HUSS, P.A. 645 S. Orange Ave. Sarasota, FL 34236 Main Phone: (941) 840‐1991 Main Fax: (941) 366‐8991 Email: [email protected] www.spiveyhuss.com

NOTICE: Our new office and mailing address is 645 S. Orange Ave., Sarasota, FL 34236.

Confidentiality Notice ‐ This message is being sent by or on behalf of an attorney. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or

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disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e‐mail and delete all copies of this message.

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Alexandra V Rieman

From: Jenna Rubin <[email protected]>Sent: Monday, May 17, 2021 2:52 PMTo: Cady HussSubject: FW:Attachments: Oath of Custodian Electronic Will (002).tiff

Follow Up Flag: Follow upFlag Status: Flagged

Cady‐ See attached. This was filed in Palm Beach County. The issue is we all know that there is no way to get a bond as a qualified custodian right now, so even though she’s swearing that she satisfies the statutory requirements, we all know it’s not true. I think if we develop a form, it should be like the new form for PRs where you specifically attest to each of the requirements in the statute rather than a blanket “I’m a qualified custodian.” Jenna

Jenna G. Rubin, Esq. Rubin on Probate Litigation | www.floridatax.com 2101 NW Corporate Blvd. | Suite 107 | Boca Raton, FL 33431 561‐998‐7847 | 561‐998‐2642 (F) | [email protected]

From: Tehera Smith <[email protected]> Sent: Tuesday, May 11, 2021 11:03 AM To: Jenna Rubin <[email protected]> Subject: Good morning, See attached, is this saying that the notary is also the custodian of the Will?

Please be advised that Florida has a broad public records law, and all correspondence to me via email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email addresses are public records. If you do not want your email address released in response to a public records request, do not send emails to this entity. Instead, contact this office by phone or in writing.

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Alexandra V Rieman

From: Frederick L. Hearn <[email protected]>Sent: Tuesday, July 20, 2021 8:16 AMTo: Alexandra V RiemanCc: Huss, Cady; [email protected]; Godwin, Krys; Erin Farrington Finlen; [email protected];

'Pratt, Kenneth D'; Taite, Phyllis C; Zuroweste, Zackary TSubject: RE: PRC - Subcommittee D

Follow Up Flag: Follow upFlag Status: Flagged

Good Morning Alex, I checked with Jenna and confirmed that she is referring to the form listed under Rule 5.320 for the Oath of PR. Jenna is suggesting the creation of a similar form oath for a qualified custodian to execute to comply with the self‐proof requirements listed under Section 732.523(4), which are as follows: “The qualified custodian who has custody of the electronic will at the time of the testator’s death certifies under oath that, to the best knowledge of the qualified custodian, the electronic record that contains the electronic will was at all times before being offered to the court in the custody of a qualified custodian in compliance with s. 732.524 and that the electronic will has not been altered in any way since the date of its execution.” For anyone unfamiliar with the relatively new e‐wills statute, in order for an e‐will to be self‐proved it must designate a “Qualified Custodian” and be held by a qualified custodian (the QC can change over time) from the time it is executed to the time it is submitted to the clerk for probate after the death of the testator. Qualified Custodian is a defined term under the new statute, and there are duties and obligations that a QC must comply with under 732.524 and 732.525. My understanding is the first e‐wills are beginning to be submitted to probate, and some of the clerks and courts are unsure of what needs to be submitted by a QC for a will to be self‐proved. Jenna is suggesting creation of a new form to clarify the procedural requirements. I assume this will also require creation of a new probate rule under which the form can be listed in a similar fashion as the Oath of PR. Frederick “Ricky” Hearn Attorney Steven L. Hearn, P.A. [email protected] 813‐222‐0003

From: Alexandra V Rieman <[email protected]> Sent: Monday, July 19, 2021 12:04 PM To: Frederick L. Hearn <[email protected]> Cc: Huss, Cady <[email protected]>; [email protected]; Godwin, Krys <[email protected]>; Erin Farrington Finlen <[email protected]>; [email protected]; 'Pratt, Kenneth D' <[email protected]>; Taite, Phyllis C <[email protected]>; Zuroweste, Zackary T <[email protected]> Subject: FW: PRC ‐ Subcommittee D

Ricky

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Can you provide any insight into this matter the for the Subcommittee? I did not locate a current form and to the best of my knowledge PRC does not usually adopt forms as part of the Rules. The exception being the Oath of PR, Fiduciary Accounting, Guardianship Accounting, and Guardianship forms as requested by the Supreme Court. Thanks. Alexandra V. Rieman, Attorney at Law Guardianship, Advocacy, Probate, Planning, and Special Needs 954-779-6475 [email protected]

The information transmitted is intended solely for the individual or entity to which it is addressed and may contain confidential and/or privileged material. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in this message. Any review, retransmission, dissemination or other use of or taking action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you have received this e-mail in error, please contact the sender by reply e-mail and delete the material from any computer. If you are not an existing client of this firm, with a current and signed engagement letter/representation agreement, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything in reply that you intend to be confidential. If you properly received this e-mail as a client, co-counsel or consultant, you should maintain its contents in confidence in order to preserve the attorney-client privilege or work product exclusion that may be available to protect confidentiality.

From: Cady Huss <[email protected]> Sent: Friday, July 16, 2021 2:39 PM To: Alexandra V Rieman <[email protected]>; [email protected]; 'Frederick L. Hearn' <[email protected]>; '[email protected]' <[email protected]>; 'Kenneth Pratt' <[email protected]>; '[email protected]' <[email protected]>; Zack Zuroweste <[email protected]> Cc: 'Morris, Benjamin' <[email protected]>; 'Godwin, Krys' <[email protected]> Subject: PRC ‐ Subcommittee D Good afternoon PRC Subcommittee D,

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To follow up on Ben’s email of earlier today. Your subcommittee includes:

Alexandra Rieman, Chair Erin Finlen Frederick Hearn Saidin Hernandez Kenneth Pratt Phyllis Taite Zackary Zuroweste Everyone is copied on this email. After our June meeting, Subcommittee D had no pending projects but we have a new referral for you. The RPPTL Section, and particularly the Ad Hoc E‐Wills Committee, has requested that the PRC review probate forms for when an electronic will is being admitted. Currently, our forms address only the requirements for traditional wills and not the requirements for e‐wills. See Jenna’s email on the topic attached. Ricky Hearn is a Vice‐Chair of the E‐Wills Committee and will be a liaison on this issue for us. He can outline the matter in greater detail when you get together. We will expect a report at our next meeting and Ben will be following up to see how it’s coming along. Thank you for all your work on the Probate Rules Committee! Cady L. Huss Attorney SPIVEY & HUSS, P.A. 645 S. Orange Ave. Sarasota, FL 34236 Main Phone: (941) 840‐1991 Main Fax: (941) 366‐8991 Email: [email protected] www.spiveyhuss.com

NOTICE: Our new office and mailing address is 645 S. Orange Ave., Sarasota, FL 34236. Confidentiality Notice ‐ This message is being sent by or on behalf of an attorney. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e‐mail and delete all copies of this message.

The Florida Senate2020 Florida Statutes

Title XPUBLIC OFFICERS, EMPLOYEES,AND RECORDS

Chapter 117NOTARIES PUBLIC

Entire Chapter

SECTION 245 Electronic journal of onlinenotarizations.

117.245 Electronic journal of online notarizations.—(1) An online notary public shall keep one or more secure electronic journals of online notarizations performed by

the online notary public. For each online notarization, the electronic journal entry must contain all of the following:(a) The date and time of the notarization.(b) The type of notarial act.(c) The type, the title, or a description of the electronic record or proceeding.(d) The name and address of each principal involved in the transaction or proceeding.(e) Evidence of identity of each principal involved in the transaction or proceeding in any of the following forms:1. A statement that the person is personally known to the online notary public.2. A notation of the type of government-issued identification credential provided to the online notary public.(f) An indication that the principal satisfactorily passed the identity proofing.(g) An indication that the government-issued identification credential satisfied the credential analysis.(h) The fee, if any, charged for the notarization.(2) The online notary public shall retain an uninterrupted and unedited copy of the recording of the audio-video

communication in which an online notarization is performed. The recording must include all of the following:(a) Appearance by the principal and any witness before the online notary public.(b) Confirmation of the identity of the principal and any witness.(c) A general description or identification of the records to be signed.(d) At the commencement of the recording, recitation by the online notary public of information sufficient to

identify the notarial act.(e) A declaration by the principal that his or her signature on the record is knowingly and voluntarily made.(f) All of the actions and spoken words of the principal, notary public, and any required witness during the entire

online notarization, including the signing of any records before the online notary public.(3) The online notary public shall take reasonable steps to:(a) Ensure the integrity, security, and authenticity of online notarizations.(b) Maintain a backup record of the electronic journal required by subsection (1).(c) Protect the electronic journal, the backup record, and any other records received by the online notary public

from unauthorized access or use.(4) The electronic journal required under subsection (1) and the recordings of audio-video communications

required under subsection (2) shall be maintained for at least 10 years after the date of the notarial act. However, a fullcopy of the recording of the audio-video communication required under subsection (2) relating to an onlinenotarization session that involves the signing of an electronic will must be maintained by a qualified custodian inaccordance with chapters 731 and 732. The Department of State maintains jurisdiction over the electronic journal andaudio-video communication recordings to investigate notarial misconduct for a period of 10 years after the date of thenotarial act. The online notary public, a guardian of an incapacitated online notary public, or the personalrepresentative of a deceased online notary public may, by contract with a secure repository in accordance with anyrules established under this chapter, delegate to the repository the online notary public’s duty to retain the electronicjournal and the required recordings of audio-video communications, provided that the Department of State is notifiedof such delegation of retention duties to the repository within 30 days thereafter, including the address and contactinformation for the repository. If an online notary public delegates to a secure repository under this section, the online

https://www.flsenate.gov/Laws/Statutes/2020/Title10/#Title10

https://www.flsenate.gov/Laws/Statutes/2020/Chapter117

https://www.flsenate.gov/Laws/Statutes/2020/Chapter117/All

notary public shall make an entry in his or her electronic journal identifying such repository, and provide notice to theDepartment of State as required in this subsection.

(5) An omi�ed or incomplete entry in the electronic journal does not impair the validity of the notarial act or of theelectronic record which was notarized, but may be introduced as evidence to establish violations of this chapter; asevidence of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, orunconscionability; or for other evidentiary purposes. However, if the recording of the audio-video communicationrequired under subsection (2) relating to the online notarization of the execution of an electronic will cannot beproduced by the online notary public or the qualified custodian, the electronic will shall be treated as a lost ordestroyed will subject to s. 733.207.

History.—s. 11, ch. 2019-71; s. 22, ch. 2020-2.

Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambersshould be consulted for official purposes.

Copyright © 2000- 2021 State of Florida.

https://www.flsenate.gov/Laws/Statutes/2020/733.207


Title XLIIESTATES AND TRUSTS

Chapter 732PROBATE CODE: INTESTATESUCCESSION AND WILLS

Entire Chapter

SECTION 503 Self-proof of will.

732.503 Self-proof of will.—(1) A will or codicil executed in conformity with s. 732.502 may be made self-proved at the time of its execution or

at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, made before anofficer authorized to administer oaths and evidenced by the officer’s certificate a�ached to or following the will, insubstantially the following form:

STATE OF FLORIDA

COUNTY OF

I, , declare to the officer taking my acknowledgment of this instrument, and to the subscribingwitnesses, that I signed this instrument as my will.

Testator

We, and , have been sworn by the officer signing below, and declare to that officer on our oaths thatthe testator declared the instrument to be the testator’s will and signed it in our presence and that we each signed theinstrument as a witness in the presence of the testator and of each other.

Witness

Witness

Acknowledged and subscribed before me by the testator, (type or print testator’s name), who is personally known tome or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification, and sworn to andsubscribed before me by the witnesses, (type or print name of first witness) who is personally known to me or who hasproduced (state type of identification—see s. 117.05(5)(b)2.) as identification and (type or print name of secondwitness) who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) asidentification, and subscribed by me in the presence of the testator and the subscribing witnesses, all on (date).

(Signature of Officer)

(Print, type, or stamp commissioned name and affix official seal)

(2) A will or codicil made self-proved under former law, or executed in another state and made self-proved underthe laws of that state, shall be considered as self-proved under this section.

History.—s. 1, ch. 74-106; s. 21, ch. 75-220; s. 12, ch. 77-87; s. 8, ch. 93-62; s. 962, ch. 97-102; s. 18, ch. 98-246; s. 43, ch. 2001-226.

Note.—Created from former s. 731.071.











Entire Chapter

SECTION 515 Separate writing identifyingdevises of tangible property.

732.515 Separate writing identifying devises of tangible property.—A wri�en statement or list referred to in thedecedent’s will shall dispose of items of tangible personal property, other than property used in trade or business, nototherwise specifically disposed of by the will. To be admissible under this section as evidence of the intendeddisposition, the writing must be signed by the testator and must describe the items and the devisees with reasonablecertainty. The writing may be prepared before or after the execution of the will. It may be altered by the testator afterits preparation. It may be a writing that has no significance apart from its effect upon the dispositions made by thewill. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, theprovisions of the most recent writing revoke the inconsistent provisions of each prior writing.

History.—s. 1, ch. 74-106; s. 29, ch. 75-220; s. 48, ch. 2001-226.









Entire Chapter

SECTION 523 Self-proof of electronic will.

732.523 Self-proof of electronic will.—An electronic will is self-proved if:(1) The acknowledgment of the electronic will by the testator and the affidavits of the witnesses are made in

accordance with s. 732.503 and are part of the electronic record containing the electronic will, or are a�ached to, or arelogically associated with, the electronic will;

(2) The electronic will designates a qualified custodian;(3) The electronic record that contains the electronic will is held in the custody of a qualified custodian at all times

before being offered to the court for probate; and(4) The qualified custodian who has custody of the electronic will at the time of the testator’s death certifies under

oath that, to the best knowledge of the qualified custodian, the electronic record that contains the electronic will was atall times before being offered to the court in the custody of a qualified custodian in compliance with s. 732.524 and thatthe electronic will has not been altered in any way since the date of its execution.

History.—s. 34, ch. 2019-71.











Entire Chapter

SECTION 524 Qualified custodians.

732.524 Qualified custodians.—(1) To serve as a qualified custodian of an electronic will, a person must be:(a) Domiciled in and a resident of this state; or(b) Incorporated, organized, or have its principal place of business in this state.(2) A qualified custodian shall:(a) In the course of maintaining custody of electronic wills, regularly employ a secure system and store in such

secure system electronic records containing:1. Electronic wills;2. Records a�ached to or logically associated with electronic wills; and3. Acknowledgments of the electronic wills by testators, affidavits of the witnesses, and the records described in s.

117.245(1) and (2) which pertain to the online notarization.(b) Furnish for any court hearing involving an electronic will that is currently or was previously stored by the

qualified custodian any information requested by the court pertaining to the qualified custodian’s qualifications,policies, and practices related to the creation, sending, communication, receipt, maintenance, storage, and productionof electronic wills.

(c) Provide access to or information concerning the electronic will, or the electronic record containing theelectronic will, only:

1. To the testator;2. To persons authorized by the testator in the electronic will or in wri�en instructions signed by the testator with

the formalities required for the execution of a will in this state;3. After the death of the testator, to the testator’s nominated personal representative; or4. At any time, as directed by a court of competent jurisdiction.(3) The qualified custodian of the electronic record of an electronic will may elect to destroy such record, including

any of the documentation required to be created and stored under paragraph (2)(a), at any time after the earlier of thefifth anniversary of the conclusion of the administration of the estate of the testator or 20 years after the death of thetestator.

(4) A qualified custodian who at any time maintains custody of the electronic record of an electronic will may electto cease serving in such capacity by:

(a) Delivering the electronic will or the electronic record containing the electronic will to the testator, if then living,or, after the death of the testator, by filing the will with the court in accordance with s. 732.901; and

(b) If the outgoing qualified custodian intends to designate a successor qualified custodian, by doing thefollowing:

1. Providing wri�en notice to the testator of the name, address, and qualifications of the proposed successorqualified custodian. The testator must provide wri�en consent before the electronic record, including the electronicwill, is delivered to a successor qualified custodian;

2. Delivering the electronic record containing the electronic will to the successor qualified custodian; and3. Delivering to the successor qualified custodian an affidavit of the outgoing qualified custodian stating that:a. The outgoing qualified custodian is eligible to act as a qualified custodian in this state;b. The outgoing qualified custodian is the qualified custodian designated by the testator in the electronic will or

appointed to act in such capacity under this paragraph;






c. The electronic will has at all times been in the custody of one or more qualified custodians in compliance withthis section since the time the electronic record was created, and identifying such qualified custodians; and

d. To the best of the outgoing qualified custodian’s knowledge, the electronic will has not been altered since thetime it was created.

For purposes of making this affidavit, the outgoing qualified custodian may rely conclusively on any affidavitsdelivered by a predecessor qualified custodian in connection with its designation or appointment as qualifiedcustodian; however, all such affidavits must be delivered to the successor qualified custodian.

(5) Upon the request of the testator which is made in writing signed with the formalities required for the executionof a will in this state, a qualified custodian who at any time maintains custody of the electronic record of the testator’selectronic will must cease serving in such capacity and must deliver to a successor qualified custodian designated inwriting by the testator the electronic record containing the electronic will and the affidavit required in subparagraph(4)(b)3.

(6) A qualified custodian may not succeed to office as a qualified custodian of an electronic will unless he or sheagrees in writing to serve in such capacity.

(7) If a qualified custodian is an entity, an affidavit, or an appearance by the testator in the presence of a dulyauthorized officer or agent of such entity, acting in his or her own capacity as such, shall constitute an affidavit, or anappearance by the testator in the presence of the qualified custodian.

(8) A qualified custodian must provide a paper copy of an electronic will and the electronic record containing theelectronic will to the testator immediately upon request. For the first request, the testator may not be charged a fee forbeing provided with these documents.

(9) The qualified custodian shall be liable for any damages caused by the negligent loss or destruction of theelectronic record, including the electronic will, while it is in the possession of the qualified custodian. A qualifiedcustodian may not limit liability for such damages.

(10) A qualified custodian may not terminate or suspend access to, or downloads of, the electronic will by thetestator, provided that a qualified custodian may charge a fee for providing such access and downloads.

(11) Upon receiving information that the testator is dead, a qualified custodian must deposit the electronic willwith the court in accordance with s. 732.901. A qualified custodian may not charge a fee for depositing the electronicwill with the clerk, provided the affidavit is made in accordance with s. 732.503, or furnishing in writing anyinformation requested by a court under paragraph (2)(b).

(12) Except as provided in this act, a qualified custodian must at all times keep information provided by thetestator confidential and may not disclose such information to any third party.

(13) A contractual venue provision between a qualified custodian and a testator is not valid or enforceable to theextent that it requires a specific jurisdiction or venue for any proceeding relating to the probate of an estate or thecontest of a will.

History.—s. 35, ch. 2019-71.








Entire Chapter

SECTION 901 Production of wills.

732.901 Production of wills.—(1) The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the

decedent within 10 days after receiving information that the testator is dead. The custodian must supply the testator’sdate of death or the last four digits of the testator’s social security number to the clerk upon deposit.

(2) Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will. Allcosts, damages, and a reasonable a�orney’s fee shall be adjudged to petitioner against the delinquent custodian if thecourt finds that the custodian had no just or reasonable cause for failing to deposit the will.

(3) An original will submi�ed to the clerk with a petition or other pleading is deemed to have been deposited withthe clerk.

(4) Upon receipt, the clerk shall retain and preserve the original will in its original form for at least 20 years. If theprobate of a will is initiated, the original will may be maintained by the clerk with the other pleadings during thependency of the proceedings, but the will must at all times be retained in its original form for the remainder of the 20-year period whether or not the will is admi�ed to probate or the proceedings are terminated. Transforming andstoring a will on film, microfilm, magnetic, electronic, optical, or other substitute media or recording a will onto anelectronic recordkeeping system, whether or not in accordance with the standards adopted by the Supreme Court ofFlorida, or permanently recording a will does not eliminate the requirement to preserve the original will.

(5) For purposes of this section, the term “will” includes a separate writing as described in s. 732.515.History.—s. 1, ch. 74-106; s. 44, ch. 75-220; s. 18, ch. 92-200; s. 972, ch. 97-102; s. 59, ch. 2001-226; s. 8, ch. 2013-172.

Note.—Created from former s. 732.22.







CHAPTER 2021-205

House Bill No. 483

An act relating to electronic legal documents; amending s. 117.201, F.S.;revising the definition of the term “online notarization”; amending s.117.285, F.S.; clarifying that supervising the witnessing of an electronicrecord by an online notary public is a notarial act; specifying applicabilityof online notarization procedures to supervision of the witnessing of anelectronic record; modifying witnessing procedures; revising applicability;amending s. 709.2119, F.S.; revising the statutory form for an affidavit foracceptance of and reliance upon a power of attorney to reflect means ofnotarization; amending s. 732.401, F.S.; revising the statutory form for thenotice of election relating to the descent of homestead property to reflectmeans of notarization; amending s. 732.503, F.S.; revising the statutoryform for the self-proof of a will or codicil to reflect means of notarization;amending s. 732.521, F.S.; conforming a cross-reference; amending s.732.703, F.S.; revising statutory forms relating to the disposition ofcertain assets at death to reflect means of notarization; amending s.747.051, F.S.; revising the form for a petition of summary relief for the saleor transfer of certain property owned by an absentee to reflect means ofnotarization; providing for construction and retroactive application;providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Subsection (9) of section 117.201, Florida Statutes, is amendedto read:

117.201 Definitions.—As used in this part, the term:

(9) “Online notarization” means the performance of a notarial act usingelectronic means in which the principal or any witness appears before thenotary public by means of audio-video communication technology.

Section 2. Section 117.285, Florida Statutes, is amended to read:

117.285 Supervising the witnessing of electronic records.—Supervisingthe witnessing of an electronic record by an online notary public inaccordance with this section is a notarial act. An online notary publicmay supervise the witnessing of electronic records by complying with theonline notarization procedures of this part and using the same audio-videocommunication technology used for online notarization by a principal, asfollows:

(1) The witness may be in the physical presence of the principal orremote from the principal provided the witness and principal are usingaudio-video communication technology.

1CODING: Words stricken are deletions; words underlined are additions.

(2) If the witness is remote from the principal and viewing andcommunicating with the principal by means of audio-video communicationtechnology, the principal’s and witness’s identities identity must be verifiedin accordance with the procedures for identifying a principal as set forth in s.117.265(4). If the witness is in the physical presence of the principal, thewitness must confirm his or her identity by stating his or her name andcurrent address on the audio-video recording as part of the act of witnessing.

(3) The act of witnessing an electronic signature means the witness iseither in the physical presence of the principal or present through audio-video communication technology at the time the principal affixes theelectronic signature and the witness hears the principal make a statementto the effect that the principal has signed the electronic record.

(4) A witness remote from the principal and appearing through audio-video communication technology must verbally confirm that he or she is aresident of and physically located within the United States or a territory ofthe United States at the time of witnessing.

(5) Notwithstanding subsections (2) and (3), if an electronic record to besigned is a will under chapter 732, a revocable trust with testamentaryaspects as described in s. 736.0403(2)(b) under chapter 736, a health careadvance directive, an agreement concerning succession or a waiver ofspousal rights under s. 732.701 or s. 732.702, respectively, or a power ofattorney authorizing any of the transactions enumerated in s. 709.2208, allof the following apply when fewer than two witnesses are in the physicalpresence of the principal shall apply:

(a) Prior to facilitating witnessing of an instrument by means of audio-video communication technology, a RON service provider shall require theprincipal to answer the following questions in substantially the followingform:

1. Are you under the influence of any drug or alcohol today that impairsyour ability to make decisions?

2. Do you have any physical or mental condition or long-term disabilitythat impairs your ability to perform the normal activities of daily living?

3. Do you require assistance with daily care?

(b) If any question required under paragraph (a) is answered in theaffirmative, the principal’s signature on the instrument may only be validlywitnessed by witnesses in the physical presence of the principal at the timeof signing.

(c) Subsequent to submission of the answers required under paragraph(a), the RON service provider shall give the principal written notice insubstantially the following form:

Ch. 2021-205 LAWS OF FLORIDA Ch. 2021-205


NOTICE: If you are a vulnerable adult as defined in s. 415.102, FloridaStatutes, the documents you are about to sign are not valid if witnessed bymeans of audio-video communication technology. If you suspect youmay be avulnerable adult, you should have witnesses physically present with youbefore signing.

(d) The act of witnessing an electronic signature through the witness’spresence by audio-video communication technology is valid only if, duringthe audio-video communication, the principal provides verbal answers to allof the following questions, each of which must be asked by the online notarypublic in substantially the following form:

1. Are you currently married? If so, name your spouse.

2. Please state the names of anyone who assisted you in accessing thisvideo conference today.

3. Please state the names of anyone who assisted you in preparing thedocuments you are signing today.

4. Where are you currently located?

5. Who is in the room with you?

(e) An online notary public shall consider the responses to the questionsspecified in paragraph (d) in carrying out of the duties of a notary public asset forth in s. 117.107(5).

(f) A principal’s responses to the questions in paragraphs (a) and (d) maybe offered as evidence regarding the validity of the instrument, but anincorrect answer may not serve as the sole basis to invalidate an instrument.

(g) The presence of a witness with the principal at the time of signing bymeans of audio-video communication technology is not effective for witnes-sing the signature of a principal who is a vulnerable adult as defined in s.415.102. The contestant of an electronic record has the burden of provingthat the principal was a vulnerable adult at the time of executing theelectronic record.

(h) Nothing in this subsection shall:

1. Preclude a power of attorney, which includes banking or investmentpowers enumerated in s. 709.2208, from being effective with respect to anyother authority granted therein or with respect to the agent’s authority inconnection with a real property, commercial, or consumer transaction orloan, to exercise any power specified therein or to execute and deliverinstruments obligating the principal or to draw upon the proceeds of suchtransaction or loan; or



2. Affect the nontestamentary aspects of a revocable trust under chapter736.

(i) The electronic record containing an instrument signed by witnesseswho were present with the principal by means of audio-video communicationtechnology shall contain a perceptible indication of their presence by suchmeans.

(j) Nothing in This subsection does not shall affect the application of s.709.2119.

(k) The requirements of this subsection do not apply if there are at leasttwo witnesses in the physical presence of the principal at the time of thenotarial act.

(6) Pursuant to subpoena, court order, an authorized law enforcementinquiry, or other lawful request, a RON service provider or online notarypublic shall provide:

(a) The last known address of each witness who witnessed the signing ofan electronic record using audio-video communication technology under thissection.

(b) A principal’s responses to the questions in paragraph (5)(a) orparagraph (5)(d) (5)(b), as applicable.

(c) An uninterrupted and unedited copy of the recording of the audio-video communication in which an online notarization is performed.

(7) Except as set forth in s. 709.2202, an act of witnessing performedpursuant to this section satisfies any requirement that the witness must be asubscribing or attesting witness or must be in the presence of the principal atthe time of signing.

(8) The law of this state governs the validity of witnessing supervised byan online notary public pursuant to this section, regardless of the physicallocation of the witness at the time of witnessing. State and federal courts inthis state have subject matter jurisdiction over any dispute arising out of anact of witnessing pursuant to this section, and may issue subpoenas forrecords or to require the appearance of witnesses in relation thereto inaccordance with applicable law.

Section 3. Paragraph (c) of subsection (2) of section 709.2119, FloridaStatutes, is amended to read:

709.2119 Acceptance of and reliance upon power of attorney.—

(2) A third person may require:

(c) A written affidavit executed by the agent under this subsection whichmay, but need not, be in the following form:



STATE OF..................

COUNTY OF..................

Before me, the undersigned authority, personally appeared …(agent)…(“Affiant”) by the means specified herein, who swore or affirmed that:

1. Affiant is the agent named in the Power of Attorney executed by …(principal)… (“Principal”) on …(date)….

2. This Power of Attorney is currently exercisable by Affiant. Theprincipal is domiciled in …(insert name of state, territory, or foreigncountry)….

3. To the best of Affiant’s knowledge after diligent search and inquiry:

a. The Principal is not deceased;

b. Affiant’s authority has not been suspended by initiation of proceedingsto determine incapacity or to appoint a guardian or a guardian advocate;

c. Affiant’s authority has not been terminated by the filing of an actionfor dissolution or annulment of Affiant’s marriage to the principal, or theirlegal separation; and

d. There has been no revocation, or partial or complete termination, ofthe power of attorney or of Affiant’s authority.

4. Affiant is acting within the scope of authority granted in the power ofattorney.

5. Affiant is the successor to…(insert name of predecessor agent)…, whohas resigned, died, become incapacitated, is no longer qualified to serve, hasdeclined to serve as agent, or is otherwise unable to act, if applicable.

6. Affiant agrees not to exercise any powers granted by the Power ofAttorney if Affiant attains knowledge that the power of attorney has beenrevoked, has been partially or completely terminated or suspended, or is nolonger valid because of the death or adjudication of incapacity of thePrincipal.

........................

…(Affiant)…

Sworn to (or affirmed) and subscribed before me by means of ☐ physicalpresence or ☐ online notarization this ...... day of…(month)…,…(year)…, by…(name of person making statement)…



…(Signature of Notary Public-State of Florida)…

…(Print, Type, or Stamp Commissioned Name of Notary Public)…

Personally Known OR Produced Identification

…(Type of Identification Produced)…

Section 4. Paragraph (e) of subsection (2) of section 732.401, FloridaStatutes, is amended to read:

732.401 Descent of homestead.—

(2) In lieu of a life estate under subsection (1), the surviving spouse mayelect to take an undivided one-half interest in the homestead as a tenant incommon, with the remaining undivided one-half interest vesting in thedecedent’s descendants in being at the time of the decedent’s death, perstirpes.

(e) The election must shall be made by filing a notice of electioncontaining the legal description of the homestead property for recordingin the official record books of the county or counties where the homesteadproperty is located. The notice must be in substantially the following form:

ELECTION OF SURVIVING SPOUSETO TAKE A ONE-HALF INTEREST OF

DECEDENT’S INTEREST INHOMESTEAD PROPERTY

STATE OF............

COUNTY OF............

1. The decedent, ........................, died on ................... On the date of thedecedent’s death, the decedent was married to .................., who survived thedecedent.

2. At the time of the decedent’s death, the decedent owned an interest inreal property that the affiant believes to be homestead property described ins. 4, Article X of the State Constitution, which real property being in ............County, Florida, and described as:…(description of homestead property)….

3. Affiant elects to take one-half of decedent’s interest in the homesteadas a tenant in common in lieu of a life estate.

4. If affiant is not the surviving spouse, affiant is the surviving spouse’sattorney in fact or guardian of the property, and an order has been rendered



by a court having jurisdiction of the real property authorizing theundersigned to make this election.

........................

…(Affiant)…

Sworn to (or affirmed) and subscribed before me by means of ☐ physicalpresence or ☐ online notarization this ...... day of…(month)…,…(year)…, by…(affiant)…

…(Signature of Notary Public-State of Florida)…


Personally Known OR Produced Identification

…(Type of Identification Produced)…


732.503 Self-proof of will.—

(1) A will or codicil executed in conformity with s. 732.502 may be madeself-proved at the time of its execution or at any subsequent date by theacknowledgment of it by the testator and the affidavits of the witnesses,made before an officer authorized to administer oaths and evidenced by theofficer’s certificate attached to or following the will, in substantially thefollowing form:

STATE OF............ FLORIDA

COUNTY OF ......

I,.................., declare to the officer taking my acknowledgment of thisinstrument, and to the subscribing witnesses, that I signed this instrumentas my will.

....................................

Testator

We,............and............, have been sworn by the officer signing below, anddeclare to that officer on our oaths that the testator declared the instrument



to be the testator’s will and signed it in our presence and that we each signedthe instrument as a witness in the presence of the testator and of each other.

....................................

Witness

....................................

Witness

Acknowledged and subscribed before me by means of ☐ physical presenceor ☐ online notarization by the testator, (type or print testator’s name), who☐ is personally known to me or ☐ who has produced (state type ofidentification—see s. 117.05(5)(b)2.) as identification, and sworn to andsubscribed before me by each of the following witnesses:, (type or print nameof first witness) who ☐ is personally known to me or ☐ who has produced(state type of identification—see s. 117.05(5)(b)2.) as identification, bymeans of ☐ physical presence or ☐ online notarization; and (type or printname of second witness) who ☐ is personally known to me or ☐ who hasproduced (state type of identification—see s. 117.05(5)(b)2.) as identification,by means of ☐ physical presence or ☐ online notarization. and Subscribed byme in the presence of the testator and the subscribing witnesses, by themeans specified herein, all on (date).

…(Signature of Officer)…

…(Print, type, or stamp commissioned name and affix official seal)…


732.521 Definitions.—As used in ss. 732.521-732.525, the term:

(7) “Qualified custodian” means a person who meets the requirements ofs. 732.524(1) s. 732.525(1).

Section 7. Paragraph (b) of subsection (5) of section 732.703, FloridaStatutes, is amended to read:

732.703 Effect of divorce, dissolution, or invalidity of marriage ondisposition of certain assets at death.—

(5) In the case of an asset described in paragraph (3)(a), paragraph (3)(b),or paragraph (3)(c), unless payment or transfer would violate a court orderdirected to, and served as required by law on, the payor:



(b) As to any portion of the asset required by the governing instrument tobe paid after the decedent’s death to a primary beneficiary explicitlydesignated in the governing instrument as the decedent’s spouse:

1. If the death certificate states that the decedent was married at thetime of his or her death to that spouse, the payor is not liable for making apayment on account of, or for transferring an interest in, that portion of theasset to such primary beneficiary.

2. If the death certificate states that the decedent was not married at thetime of his or her death, or if the death certificate states that the decedentwas married to a person other than the spouse designated as the primarybeneficiary at the time of his or her death, the payor is not liable for making apayment on account of, or for transferring an interest in, that portion of theasset to a secondary beneficiary under the governing instrument.

3. If the death certificate is silent as to the decedent’s marital status atthe time of his or her death, the payor is not liable for making a payment onaccount of, or for transferring an interest in, that portion of the asset to theprimary beneficiary upon delivery to the payor of an affidavit validlyexecuted by the primary beneficiary in substantially the following form:

STATE OF..................COUNTY OF..................

Before me, the undersigned authority, personally appeared by themeans specified herein,…(type or print Affiant’s name)...… (“Affiant”),who swore or affirmed that:1. …(Type or print name of Decedent)… (“Decedent”) died on…(type

or print the date of the Decedent’s death)….2. Affiant is a “primary beneficiary” as that term is defined in

Section 732.703, Florida Statutes. Affiant and Decedent were marriedon…(type or print the date of marriage)…, and were legally married toone another on the date of the Decedent’s death.

…(Affiant)…Sworn to or affirmed before me by means of ☐ physical presence or ☐

online notarization by the affiant who ☐ is personally known to me or ☐who has produced…(state type of identification)… as identification this...... day of …(month)…, …(year)….…(Signature of Officer)…

…(Print, Type, or Stamp Commissioned name of Notary Public)…

4. If the death certificate is silent as to the decedent’s marital status atthe time of his or her death, the payor is not liable for making a payment onaccount of, or for transferring an interest in, that portion of the asset to thesecondary beneficiary upon delivery to the payor of an affidavit validlyexecuted by the secondary beneficiary affidavit in substantially the follow-ing form:



STATE OF..................COUNTY OF..................

Before me, the undersigned authority, personally appeared by themeans specified herein, …(type or print Affiant’s name)… (“Affiant”),who swore or affirmed that:1. …(Type or print name of Decedent)… (“Decedent”) died on…(type

or print the date of the Decedent’s death)….2. Affiant is a “secondary beneficiary” as that term is defined in

Section 732.703, Florida Statutes. On the date of the Decedent’s death,the Decedent was not legally married to the spouse designated as the“primary beneficiary” as that term is defined in Section 732.703, FloridaStatutes.

…(Affiant)…

Sworn to or affirmed before me by means of ☐ physical presence or ☐online notarization by the affiant who ☐ is personally known to me or ☐ whohas produced…(state type of identification)… as identification this ...... dayof …(month)…, …(year)….

…(Signature of Officer)……(Print, Type, or Stamp Commissioned name of Notary Public)…


747.051 Summary procedure.—

(1) If the wife of any person defined as an absentee in s. 747.01(1), or hisnext of kin if said absentee has no wife, shall wish to sell or transfer anyproperty of the absentee which has a gross value of less than $5,000, or shallrequire the consent of the absentee in any matter regarding the absentee’schildren or in any other matter in which the gross value of the subject matteris less than $5,000, she may apply to the circuit court for an orderauthorizing said sale, transfer, or consent without opening a full conserva-torship proceeding as provided by this chapter. She may make theapplication without the assistance of an attorney. Said application shallbe made by petition on the following form, which form shall be made readilyavailable to the applicant by the clerk of the circuit court:

In the Circuit Court

In re: …(Absentee)…, case number .......



PETITION FOR SUMMARY RELIEF

Petitioner, …(Name)…, whose residence is …(Street & number)…, …(Cityor town)…, and …(County)…, Florida, and who is the …(Describe relation-ship to absentee)… of the absentee,…(Name)…, states that the absentee hasbeen …(Imprisoned or missing in action)… since …(Date)… when …(Describe details)…. Petitioner desires to sell/transfer …(Describe prop-erty)… of the value of…(Value)… because…(Give reasons)…. The terms ofsale/transfer are …(Give reasons)…. Petitioner requires the consent of theabsentee for the purpose of .......

…...(Petitioner)…

State of ...... Florida

County of......

Sworn to (or affirmed) and subscribed before me by means of ☐ physicalpresence or ☐ online notarization this ...... day of ............,…...(year)…, by…(name of person making statement)….

…(Signature of Notary Public - State of Florida)…


Personally Known ............ OR Produced Identification . . . . . . . . . . . . .

Type of Identification Produced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 9. The amendments made by this act are remedial in nature andshall apply retroactively to January 1, 2020.

Section 10. This act shall take effect upon becoming a law.

Approved by the Governor June 29, 2021.

Filed in Office Secretary of State June 29, 2021.



CHAPTER 2021-137

Committee Substitute for House Bill No. 121

An act relating to notaries public; amending s. 117.021, F.S.; providing thata notary public is entitled to select particular technology in performing anotarial act with respect to an electronic record; authorizing a notarypublic’s contract or employer to require the use of a particular technologyin performing a notarial act with respect to an electronic record; amendings. 117.05, F.S.; revising the limitations on notary public fees; amending s.117.201, F.S.; revising definitions; amending s. 117.225, F.S.; revisingcertain registration requirements for online notaries public; creating s.117.231, F.S.; authorizing notaries public to use audio-video communica-tion technology to remotely swear in individuals who testify under certaincircumstances; authorizing notaries public to use audio-video commu-nication technology to remotely swear in new attorneys admitted to TheFlorida Bar; requiring consent from individuals being sworn in if audio-video communication technology is used under certain circumstances;providing that notaries public who use audio-video communicationtechnology under certain circumstances are not required to meet specifiedrequirements; amending s. 117.245, F.S.; modifying requirements forentries in the electronic journal maintained by an online notary public;requiring a remote online notarization service provider, rather than anonline notary public, to retain audio-video communication recordings ofonline notarizations; authorizing a RON service provider to delegate thisduty to a secure repository under certain conditions; conforming provi-sions to changes made by the act; amending s. 117.255, F.S.; revisingprovisions governing access to audio-video communication recordings toconform to changes made by the act; authorizing a remote onlinenotarization service provider to charge a fee for access to such recordings,subject to specified limitations; amending s. 117.265, F.S.; providing thatan online notary public is entitled to select his or her remote onlinenotarization service provider; authorizing a notary public’s contract oremployer to require the use of a particular remote online notarizationservice provider in performing online notarizations; requiring an onlinenotary public to notify the Department of State of the effective date of achange in the remote online notarization service provider used; amendings. 117.275, F.S.; providing limitations on fees charged for onlinenotarizations; amending s. 117.295, F.S.; requiring the department topublish on its website a list containing certain information on onlinenotaries public; requiring a remote online notarization service provider tofile a self-certification with the department; specifying the duration of aself-certification; requiring the department to publish on its website a listcontaining certain information on self-certified remote online notarizationservice providers; prohibiting a remote online notarization serviceprovider from using, selling, or offering to sell or transfer personalinformation obtained in the course of performing online notarizations;providing exceptions; providing an effective date.


Be It Enacted by the Legislature of the State of Florida:


117.021 Electronic notarization.—

(4) A notary public performing a notarial act with respect to an electronicrecord shall select the technology to be used for such notarial act. A personmay not require the a notary public to use a particular perform a notarial actwith respect to an electronic record with a form of technology; however, if thenotary public is required by his or her contract or employer to performnotarial acts with respect to electronic records, the contract or employer mayrequire the use of a particular technology for those notarial acts that thenotary public has not selected to use.

Section 2. Paragraph (a) of subsection (2) of section 117.05, FloridaStatutes, is amended to read:

117.05 Use of notary commission; unlawful use; notary fee; seal; duties;employer liability; name change; advertising; photocopies; penalties.—

(2)(a) The fee of a notary public may not exceed $10 for any one notarialact under this part, except as provided in s. 117.045 or s. 117.275.

Section 3. Subsections (6) and (14) of section 117.201, Florida Statutes,are amended to read:

117.201 Definitions.—As used in this part, the term:

(6) “Government-issued identification credential” means any approvedcredential for verifying identity under s. 117.05(5)(b)2. However, for anonline notarization of a principal not located within the United States, apassport issued by a foreign government not including the stamp of theUnited States Bureau of Citizenship and Immigration Services may be usedas a government-issued identification credential to verify the principal’sidentity.

(14) “Remote Online Notarization service provider” or “RON serviceprovider” means a person that provides audio-video communication tech-nology and related processes, services, software, data storage, or otherservices to online notaries public for the purpose of directly facilitating theirperformance of online notarizations, in compliance with the requirements ofthis chapter and any rules adopted by the Department of State pursuant to s.117.295.

Section 4. Subsections (1) and (5) of section 117.225, Florida Statutes,are amended to read:

117.225 Registration; qualifications.—A notary public, a civil-law notaryappointed under chapter 118, or a commissioner of deeds appointed under



part IV of chapter 721 may complete registration as an online notary publicwith the Department of State by:

(1) Holding a current commission as a notary public under part I of thischapter, an appointment as a civil-law notary under chapter 118, or anappointment as a commissioner of deeds under part IV of chapter 721, andsubmitting his or her a copy of such commission or proof of such appointmentnumber with his or her registration.

(5) Identifying the RON service provider or providers whose audio-videocommunication technology and processes for credential analysis andidentity-proofing technologies the registrant intends to use for onlinenotarizations, and confirming that such technology and processes satisfythe requirements of this chapter and any rules adopted by the Department ofState pursuant to s. 117.295.

Section 5. Section 117.231, Florida Statutes, is created to read:

117.231 Remote administration of certain oaths.—

(1) When taking the oath of an individual who is testifying at any courtproceeding, deposition, arbitration, or public hearing and who is outside ofthe physical presence of the notary public, the notary public may fulfill therequirements of s. 117.05 using audio-video communication technology.

(2) When taking an oath of admission to The Florida Bar from anindividual who is outside of the physical presence of the notary public, thenotary public may fulfill the requirements of s. 117.05 using audio-videocommunication technology.

(3) If an individual is located outside of this state at the time the notarypublic is to take the individual’s oath under this section, consent from theindividual must be obtained to take his or her oath using audio-videocommunication technology pursuant to this section.

(4) When taking an oath under this section, the notary public is notrequired to be an online notary public or to use a RON service provider.

Section 6. Subsections (1), (2), (4), and (5) of section 117.245, FloridaStatutes, are amended to read:

117.245 Electronic journal of online notarizations.—

(1) An online notary public shall keep one or more secure electronicjournals of online notarizations performed by the online notary public. Foreach online notarization, the electronic journal entry must contain all of thefollowing:

(a) The date and time of the notarization.



(b) The type of notarial act performed, whether an oath or acknowl-edgment.

(c) The type, the title, or a description of the electronic record orproceeding.

(d) The name and address of each principal involved in the transaction orproceeding.

(e) Evidence of identity of each principal involved in the transaction orproceeding in either any of the following forms:

1. A statement that the person is personally known to the online notarypublic; or.

2.a. A notation of the type of government-issued identification credentialprovided to the online notary public;

b. An indication that the government-issued identification credentialsatisfied the credential analysis; and.

c.(f) An indication that the principal satisfactorily passed the identityproofing.

(g) An indication that the government-issued identification credentialsatisfied the credential analysis.

(f)(h) The fee, if any, charged for the notarization.

(2) The RON service provider online notary public shall retain anuninterrupted and unedited copy of the recording of the audio-videocommunication in which an online notarization is performed. The onlinenotary public shall ensure that the recording includes must include all of thefollowing:

(a) Appearance by the principal and any witness before the online notarypublic.

(b) Confirmation of the identity of the principal and any witness.

(c) A general description or identification of the records to be signed.

(d) At the commencement of the recording, recitation by the onlinenotary public of information sufficient to identify the notarial act.

(e) A declaration by the principal that his or her signature on the recordis knowingly and voluntarily made.

(f) All of the actions and spoken words of the principal, notary public, andany required witness during the entire online notarization, including thesigning of any records before the online notary public.



(4) The electronic journal required under subsection (1) and the record-ings of audio-video communications required under subsection (2) shall bemaintained for at least 10 years after the date of the notarial act. However, afull copy of the recording of the audio-video communication required undersubsection (2) relating to an online notarization session that involves thesigning of an electronic will must be maintained by a qualified custodian inaccordance with chapters 731 and 732. The Department of State maintainsjurisdiction over the electronic journal and audio-video communicationrecordings to investigate notarial misconduct for a period of 10 years afterthe date of the notarial act. The online notary public, a guardian of anincapacitated online notary public, or the personal representative of adeceased online notary public may, by contract with a secure repository inaccordance with any rules established under this chapter, delegate to therepository the online notary public’s duty to retain the electronic journal andthe required recordings of audio-video communications, provided that theDepartment of State is notified of such delegation of retention duties to therepository within 30 days thereafter, including the effective date of thedelegation and the address and contact information for the repository. If anonline notary public delegates to a secure repository under this section, theonline notary public shall make an entry in his or her electronic journalidentifying such repository, and provide notice to the Department of State asrequired in this subsection. A RON service provider may, by contract with asecure repository in accordance with any rules established under thischapter, delegate to the repository the RON service provider’s duty to retainthe required recordings of audio-video communications, provided that theDepartment of State is notified of such delegation of retention duties to therepository within 30 days thereafter, including the effective date of thedelegation and the address and contact information for the repository.During any delegation under this subsection, the secure repository shallfulfill the responsibilities of the online notary public or RON service providerto provide copies or access under s. 117.255(2) and (3).

(5) An omitted or incomplete entry in the electronic journal does notimpair the validity of the notarial act or of the electronic record which wasnotarized, but may be introduced as evidence to establish violations of thischapter; as evidence of possible fraud, forgery, impersonation, duress,incapacity, undue influence, minority, illegality, or unconscionability; orfor other evidentiary purposes. However, if the recording of the audio-videocommunication required under subsection (2) relating to the onlinenotarization of the execution of an electronic will cannot be produced bythe RON service provider, the online notary public, or the qualifiedcustodian, the electronic will shall be treated as a lost or destroyed willsubject to s. 733.207.


117.255 Use of electronic journal, signature, and seal.—

(1) An online notary public shall:



(a)(1) Take reasonable steps to ensure that any registered device used tocreate an electronic seal is current and has not been revoked or terminatedby the issuing or registering authority of the device.

(b)(2) Keep the electronic journal and electronic seal secure and underhis or her sole control, which includes access protection using passwords orcodes under control of the online notary public. The online notary public maynot allow another person to use the online notary public’s electronic journal,electronic signature, or electronic seal, other than a RON service provider orother authorized person providing services to an online notary public tofacilitate performance of online notarizations.

(c)(3) Attach or logically associate the electronic signature and seal to theelectronic notarial certificate of an electronic record in a manner that iscapable of independent verification using tamper-evident technology thatrenders any subsequent change or modification to the electronic recordevident.

(d)(4) Notify an appropriate law enforcement agency and the Depart-ment of State of any unauthorized use of or compromise to the security of theelectronic journal, official electronic signature, or electronic seal within 7days after discovery of such unauthorized use or compromise to security.

(2)(5) An online notary public shall provide Make electronic copies, uponrequest, of the pertinent entries in the electronic journal, and a RON serviceprovider shall provide access to the related audio-video communicationrecordings, or a copy thereof, to the following persons upon request:

(a) The parties to an electronic record notarized by the online notarypublic;

(b) The qualified custodian of an electronic will notarized by the onlinenotary public;

(c) The title agent, settlement agent, or title insurer who insured theelectronic record or engaged the online notary public with regard to a realestate transaction;

(d) The online notary public’s RON service provider whose services wereused by the online notary public to notarize the electronic record;

(e) Any person who is asked to accept a power of attorney that wasnotarized by the online notary public;

(e)(f) The Department of State pursuant to a notary misconductinvestigation; and

(f)(g) Any other persons pursuant to a subpoena, court order, lawenforcement investigation, or other lawful inspection demand;



(g) With respect to audio-video communication recordings of an onlinenotarization, the online notary public performing that notarization; and

(h) With respect to electronic copies of pertinent entries in the electronicjournal, the RON service provider used for the online notarizationsassociated with those entries.

(3)(6) The online notary public may charge a fee not to exceed $20 pertransaction record for making and delivering electronic copies of a givenseries of related electronic records, and a RON service provider may charge afee not to exceed $20 for providing access to, or a copy of, the related audio-video communication records, except such copies or access must be providedwithout charge if requested by any of the following within the 10-year periodspecified in s. 117.245(4):

(a) A party to the electronic record;

(b) In a real estate transaction, the title agent, settlement agent, or titleinsurer who insured the electronic record or engaged the online notarypublic with regard to such transaction; or

(c) The Department of State pursuant to an investigation relating to theofficial misconduct of an online notary public;

(d) The qualified custodian of an electronic will notarized by the onlinenotary public;

(e) With respect to audio-video communication recordings of an onlinenotarization, the online notary public performing that notarization; or

(f) With respect to electronic copies of a given series of related electronicrecords, the RON service provider used for the online notarization of thoserecords.

If the online notary public or RON service provider charges does charge a fee,the online notary public or RON service provider must shall disclose theamount of such fee to the requester before making the electronic copies orproviding access to, or making a copy of, the requested audio-videocommunication recordings.


117.265 Online notarization procedures.—

(5)(a) An online notary public shall select the RON service provider to beused to perform an online notarization, and a person may not require theonline notary public to use a particular RON service provider; however, if theonline notary public is required by his or her contract or employer to performonline notarizations, the contract or employer may require the use of aparticular RON service provider for those online notarizations.



(b) An online notary public may change his or her RON service provideror providers from time to time, but shall notify the Department of State ofsuch change, and its effective date, within 30 days thereafter.


117.275 Fees for online notarization.—An online notary public or theemployer of such online notary public may charge a fee, not to exceed $25, forperforming an online notarial act notarization under this part. Fees forservices other than notarial acts, including the services of a RON serviceprovider, are not governed by this section. A RON service provider’s servicesare also not considered closing services, as defined in s. 627.7711, and a feefor those services may be separately charged.

Section 10. Subsections (2) and (4) of section 117.295, Florida Statutes,are amended, and subsection (8) is added to that section, to read:

117.295 Standards for electronic and online notarization; rulemakingauthority.—

(2) By January 1, 2020, The Department of State shall:

(a) Adopt forms, processes, and interim or emergency rules necessary toaccept applications from and register online notaries public pursuant to s.117.225.

(b) Publish on its website a list containing each online notary public, theonline notary public’s RON service providers from January 1, 2022, andthereafter, the effective dates during which the online notary public usedeach RON service provider, as identified pursuant to ss. 117.225(5) and117.265(5)(b), any secure repositories to which the online notary public mayhave delegated his or her duties pursuant to s. 117.245(4) from January 1,2022, and thereafter, and the effective dates of that delegation.

(4)(a) A RON service provider must file a self-certification with theDepartment of State, on a form adopted by department rule, confirming thatits audio-video communication technology and related processes, services,software, data storage, or other services provided to online notaries publicfor the purpose of directly facilitating their performance of online notariza-tions satisfy the requirements of this chapter and any rules adopted by theDepartment of State pursuant to this section. Each certification shallremain active for a period of 1 year after the date of filing. The Department ofState must publish on its website a list of each RON service provider thathas filed a self-certification, the date of filing of the self-certification, anysecure repositories to which the RON service provider may have delegatedits duties pursuant to s. 117.245(4) from January 1, 2022, and thereafter,and the effective dates of that delegation.

(b) A RON service provider is deemed to have satisfied tamper-evidenttechnology requirements by use of technology that renders any subsequentchange or modification to the electronic record evident.



(8) A RON service provider may not use, sell, or offer to sell or transfer toanother person for use or sale any personal information obtained under thispart which identifies a principal, a witness, or a person named in a recordpresented for online notarization, except:

(a) As necessary to facilitate performance of a notarial act;

(b) To administer or process a record provided by or on behalf of aprincipal or the transaction of which the record is a part;

(c) To detect fraud, identity theft, or other criminal activities;

(d) In accordance with this part and the rules adopted pursuant to thispart or any other applicable federal, state, or local law, or to comply with alawful subpoena or court order or a lawful request from a law enforcement orregulatory agency;

(e) To monitor and improve the audio-video communication technologyand related processes, services, software, data storage, or other servicesoffered by the RON service provider to online notaries public for the purposeof directly facilitating their performance of online notarizations; or

(f) In connection with a proposed or actual sale, merger, transfer, orexchange of all or a portion of a business or operating unit of a RON serviceprovider, or the dissolution, insolvency, or cessation of operations of abusiness or operating unit, if limited to such personal information held bythat business or unit and any transferee agrees to comply with therestrictions set forth in this subsection.

Section 11. This act shall take effect January 1, 2022.

Approved by the Governor June 21, 2021.

Filed in Office Secretary of State June 21, 2021.



probate rules committee - The Florida Bar

Documents

Transcript of probate rules committee - The Florida Bar