Asset Protection Issues in Florida

      I often get calls asking me to assist a client with asset protection. Many people believe they need a revocable trust in order to obtain asset protection. However, a revocable trust, which allows the grantor to retain control of their assets as trustee of the trust, provides no creditor protection to the grantor trustee, and is simply a tool for estate planning purposes. In order to use a trust for creditor protection the grantor must give up control of their assets and appoint a separate trustee the who is not legally obligated to act as directed by the grantor.

    However, in Florida, there are many methods of asset protection that occur simply by residing as a citizen of this State. The primary protection lies in the Florida Constitution.  Article X, Section 4 provides: 

There shall be exempt from forced sale under process of any court and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty..” 

   This means that if you own a home, whether married or single, with or without children, condominium or cooperative, regardless of value and regardless of whether you have a mortgage, a judgment creditor cannot foreclose their judgment against your homestead property. Even a municipality is unable to foreclose a code enforcement lien on homestead property. This protection extends past the death as long as your property descends to your spouse or children.  Note that if you file bankruptcy, the Florida exemption preempts State law, requiring that you must have resided at the property as your homestead for at least forty months to obtain full protection.  Prior to forty months of continuous residency, the cap is approximately $160k.  In addition, homestead property is limited to one-half acre in a municipality and one hundred sixty acres in unincorporated areas. 

   If you have a judgment and wish to sell or refinance a  homestead property, Florida law allows clearance of those claims by giving the creditor a forty-five-day notice of homestead, which gives the creditor a limited window to challenge the homestead claim.  In addition, after sale, the homestead sale proceeds remain protected as long as the proceeds are used to purchase a new homestead. We recommend placing same in a homestead trust rather than commingling the funds after any such sale while searching for a replacement homestead property.

   Florida also recognizes a special estate, called tenants by the entireties. This is property owned by married couples, such as real property (non-homestead), bank accounts or brokerage accounts.  Under common law in Florida the claims of individual creditors cannot reach properly-created entireties property.  In the eyes of the law, property owned by a married couple is treated as one, hence not reachable by creditors or divisible without both spouses conveying the interest.

  Special rules exist to create property as tenants by the entireties.  It must be received as a married couple, each must hold title to the property, each must have equal use and possession of the property, must remain married and have an equal interest therein.  Failure to meet each of these criteria invalidates the entireties protection.  Also, the judgments are not invalid, only inchoate, which means that upon breaking of the entirety’s estate (by death, divorce, or transfer), a creditor’s judgment immediately attaches to the asset.  Also, judgments against both spouses may still reach entireties property (so no fighting over the steering wheel).

   Judgment creditors have another tool to obtain payment of claims against Florida debtors.  They have the right to garnish up to twenty-five (25%) percent of a person’s wages and bank accounts.  However, debtors who serve as the head of a household (married couples and single parent with children or dependent relatives) may not have these assets garnished.  A head of household is the person that provides at least fifty percent of the living expenses for the household.  A debtor, when served with the garnishment notice, must file notice of this exemption within twenty days.

   A favorite method of asset protection is the limited liability company.  For example, if you own a rental property and a tenant or guest is hurt, you are liable for any damages, even if owned as entireties property.  Any claims in excess of insurance coverage would be a judgment against all other assets exclusive of homestead.  However, if the property is owned in a limited liability company, the claims would only be against the company and its assets.

   Limited liability companies have a second benefit.  Creditors can reach shares held in a corporation, but membership units in a multi-member LLC cannot be taken away, only the available distributions may be reached (which distributions are frequently controlled in closely held companies.

   Asset protection is an important tool, but if deployed improperly may result in unnecessary expenses and consequences, so working with a good estate and asset protection attorney is key to obtaining the best results.\

Michael J Posner, Esq., is a partner in Ward, Damon, Posner, Pheterson & Bleau, P.L. a mid-sized real estate, estate planning and business-oriented law firm serving all of South Florida, with three offices in Palm Beach County.  They specialize in estate planning and asset protection. They can be reached at 561.594.1452 or at mjposner@warddamon.com

Anatomy of a House Sale

     Due to a combination of low interest rates, Covid-19, the desire for more space and the ability for many workers to work remotely in new locations has led to a very active and robust residential real estate market. Selling a residence is a multi-step process that involves a team of professionals including Realtors, attorneys, title agents, lenders, and government officials, all of which are necessary to conduct and complete a typical house sale.

    The beginning of the process is the decision on how to market and sell the property. Traditionally most people interview and hire a local real estate agent to handle this portion of the transaction. While most Realtors utilize a standard form for a listing agreement, promulgated by their local Board of Realtors, this form is negotiable and does not have to be signed as presented. Some issues to consider include the length of the listing, whether the listing automatically renews, the terms and conditions of the sale such as allowing VA or FHA financing, or the offering of both leasing and sale.

     The biggest issue is the Realtors commission. The person listing the house is known as the listing agent and the person who brings the buyer to the transaction is known as the selling agent (because the seller indirectly pays that agent). Traditionally both agents were paid a 3% commission. This is negotiable especially if the listing agent has both sides of the transaction or if the homeowner locates a buyer on their own. For example, a common reduced commission is known as the 5-2-1. listing.  In this type of listing, the listing agent gets 5% if they have both sides of the transaction; 2% if they are the listing agent with 3% going to the selling agent; and only 1% if the seller finds the buyer on their own.

    Once a house is listed for sale it will be subject to viewing both online as well as possibly in person especially once the Covid-19 pandemic ends. This includes the placement of a lockbox on your home which allows Realtors access for showings when you are not home. As a precaution, any valuables or medicine should be securely locked to prevent any question of loss during such visitations. While those risks are small, they do occasionally happen.

   When a Buyer decides to make an offer, they will submit a contract to your agent for review and approval. The most common contract used is called the FAR/BAR Contract. Most attorneys, Realtors and title companies are familiar with this contract and its riders.  The contract can either be an “as-is contract” wherein the Buyer gets a set number of days to complete an inspection and determine whether to cancel the contract for any reason or proceed to close regardless of the property’s issues, or a limited repair contract which requires the Seller to make certain repairs up to a fixed percentage (usually a maximum of 3%) and if the Seller makes the repairs the Buyer cannot cancel the contract. In practice, 90% of the contracts I deal with are the as-is contract, with a fixed inspection period and free right to cancel.

   Once the contract is fully executed a closing agent must be selected. Please note it is the Seller’s or Buyer’s choice not the Realtor’s choice as to whom to utilize and I highly recommend that a real estate attorney be chosen instead of just a non-attorney title company. An attorney can provide greater protection and address more issues should they arise, and answer more questions regarding the purchase and sale.

   In Palm Beach County, the closing agent is customarily selected by the Seller. In Broward and Miami-Dade Counties, the closing agent is customarily selected by the Buyer.  Usually the person selecting the closing agent also pays the cost of the title premium. The other large cost customarily paid by the Seller is the Florida Documentary Stamp Tax due on the transaction, which is based on a rate of $7 per thousand in real property value. For example, a home that sells for $300,000 will have doc stamps in the amount of $2,100 due and payable from the Seller at closing.

   Once the inspection period passes, and any financing contingency has been met (the buyer has obtained loan approval) the deposit becomes nonrefundable and the parties move towards closing. The closing does not have to be formal and in most cases today closing is done through an escrow transfer with the Sellers signing separately from the Buyers and the sale documents exchanged for the net proceeds to the Seller and access to the property for the Buyer. This includes frequent remote notarization of the Buyers or Sellers signatures on closing documents though many lenders still require a wet signature on mortgages and notes.

    After closing, the title agent will issue a final Title Insurance Policy, insuring the Buyer and the Buyer’s lender have insurable and marketable title to the property. If the Buyer intends to reside at the property, the Buyer should then make an application for homestead with the property appraiser in order to obtain the tax benefit provided by Florida law.

   Because selling or purchasing a home is complicated and is also generally the most expensive transaction a party will participate in, having an experienced real estate attorney assist you in the transaction is, in my opinion, a wise investment. This choice can save you money (for example by requiring a seller to provide a survey affidavit in lieu of a new survey) and protect you should issues arise such as improper disclosures, title defects, unknown liens and encumbrances and other issues that may be missed by the title agent or Realtor.

Michael J Posner, Esq., is a partner in Ward, Damon, Posner, Pheterson & Bleau, P.L. a mid-sized real estate and business-oriented law firm serving all of South Florida, with three offices in Palm Beach County.  They specialize in real estate law and can assist sellers and purchaser with closing and financing of residential and commercial real estate including remote closings.  They can be reached at 561.594.1452 or at mjposner@warddamon.com

New Florida Law Changes Rules for Support Animals

     Several months ago, the long-awaited update to the Housing and Urban Development Guidelines relating to reasonable accommodations for service and support animals under the Fair Housing Act was finally released (FHEO Notice: 2020-01). The revised guidelines had been greatly anticipated by landlords, apartment owners and condo/homeowner’s associations with no pet policies in the hopes that the Department of Housing and Urban Development would crack down on (i) the perceived falsification of applications for a reasonable accommodation for support animals by nondisabled persons using the request to place a pet in a non-pet residential unit based upon Internet acquired letters of disability and the need for a support animal; (ii) limiting the number of support animals to one per household; and (iii) addressing exotic or farm animals as support animals.

    Unfortunately, while HUD discussed the issue of internet-based certificates, registrations and licensing documents for assistance animals, HUD did not make this type documentation invalid as part of an accommodation request.  Instead HUD stated that “…many legitimate, licensed health care professionals deliver services remotely, including over the internet.” Therefore, under said guidelines, if an accommodation is requested based on an Internet diagnosis, it appears that the accommodation must still be granted if the health care professional confirms, in writing, a person’s disability and need for a support animal when the provider has personal knowledge of the individual.

    HUD also addressed the issue of multiple support animals and confirmed that there must be separate disabilities addressed by each of the support animals in order to receive a reasonable accommodation. Finally, regard to requests for a reasonable accommodation for non-household pets, defined by HUD as “unique animals,” HUD has stated that requests a “substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.” 

    The disappointment over the new HUD guidelines was short-lived as the Florida legislature stepped in and addressed the issue of Internet certificates in connection with requests for s reasonable accommodation for support animals. The new act, effective July 1, 2020 under Section 760.27 Florida Statutes, acts to block requests based solely on medical diagnosis prescribing a support animal over the Internet, a common method used to obtain a reasonable accommodation by many tenants and owners of dogs and cats seeking to rent or buy a in a no pet property.

    Specifically, the new legislation states that if a person’s disability is not readily apparent (usually some form of recognized psychiatric or mental disability, such as anxiety, post-traumatic stress disorder (ptsd), depression, etc.) then a request is contingent upon the delivery of appropriate healthcare information diagnosing the disability and its impact on a major life activity.  Previously, under the HUD guidelines, a letter obtained from a licensed practitioner over the Internet was sufficient to support a claim for a disability that warranted a reasonable accommodation (pet owners would simply pay a fee, answer a few questions online, and out popped a certificate prescribing a support animal for the owners disability). The new legislation goes further, and requires that any Internet-based diagnosis be conditioned on at least one in person treatment as follows:

Information from a health care practitioner, as defined in s. 456.001; a telehealth provider, as defined in s. 456.47; or any other similarly licensed or certified practitioner or provider in good standing with his or her profession's regulatory body in another state but only if such out-of-state practitioner has provided in-person care or services to the tenant on at least one occasion. Such information is reliable if the practitioner or provider has personal knowledge of the person's disability and is acting within the scope of his or her practice to provide the supporting information.

    With this new statutory restriction, the number of anticipated requests for a reasonable accommodation will be substantially reduced. This assumption is based on the fact that many requests for a reasonable accommodation do not rise to the legal threshold of a diagnosable condition that interferes with  a major life activity.  Pet owners who previously relied on Internet certificates from so-called reasonable accommodation mills will now either have to obtain healthcare information from a local practitioner after an in person diagnosis, at a considerably higher cost, or give up their request for reasonable accommodation.

This article is adapted with permission from a chapter Michael J Posner, Esq., wrote for the new Florida Real Property Law (Bluebook), published by Lexis (part of the new Florida Colorbook series for attorneys). Michael specializes in real estate law and can help all parties with support animal issues.  Michael can be reached at 561.594.1452 or by e-mail at mjposner@warddamon.com.

 

The Coming Eviction Crisis

     With the pandemic in full swing and the loss of a substantial number of jobs in March 2020, the governor of the state of Florida issued Executive Order 20-94 on April 2, 2020. The Executive Order  provided, in part: “I (the Governor) hereby suspend and toll any statute providing for an eviction cause of action under Florida law solely as it relates to non-payment of rent by residential tenants due to the COVID-19 emergency for 45 days from the date of this Executive Order, including any extensions.” That order expired May 17, 2020 but was extended through June 2, 2020 by Executive Order 20-121 and further extended through July 1, 2020 by Executive Order 20-137 and through August 1, 2020 by Executive Order 20-159.

    On July 29, 2020, the Governor issued Executive Order 20-180, that continued the eviction stay, but included a condition that tenants must meet to avoid eviction. Specifically, the non-payment of rent must be due to the tenant being adversely affected by the COVID-19 emergency.  The Order defines that as being “…loss of employment, diminished wages or business income, or other monetary loss realized during the Florida State of Emergency directly impacting the ability of a residential tenant to make rent payments.”  This means that in any eviction action the tenant will have an affirmative duty to show a court that the tenant’s non-payment of rent is Covid-19 related.

    The eviction process in Florida is regulated by Chapter 83, Florida Statutes, the Landlord-Tenant Act.  No eviction may be commenced nor may any landlord exercise a self-help remedy without complying with the provisions of the Landlord-Tenant Act and the judicial procedures promulgated thereunder.  First, landlords must provide a delinquent tenant with a written notice providing the tenant at least three business days to bring the lease current. If the tenant fails to pay, the landlord may commence an action in the Florida courts for eviction. A complaint is filed and must be served on the tenant either by personal service (a requirement if a landlord is seeking damages for unpaid rent) or by posting a copy of the complaint and summons on a conspicuous location on the rental property if two attempts for personal service have failed (only if the landlord is seeking possession and not seeking damages for unpaid rent).

    Tenants have five business days to file a response to the Landlord’s complaint.  It is during this point in the preceding that a tenant must raise, as an affirmative defense, that their failure to pay rent is due to a Covid-19 emergency. Under the Landlord-Tenant Act, no defenses to an eviction can be raised (such as maintenance issues, leaks, mold, etc.) unless the tenant pays the unpaid rent into the registry of the court. Presumably, this condition will not apply if a Covid-19 emergency defense is raised. If the tenant fails to respond or raise any defenses to the complaint, the landlord is entitled to the entry of an Order for Tenant Removal. This Order directs the Clerk of the Court to issue a Writ of Possession, which directs the sheriff of the county to remove any persons in possession of the rental property. Once the Writ is issued, the sheriff will contact the landlord or their agent and schedule a lockout of the property. The sheriff will post notice of the lockout on the rental property, giving all occupants 24 hours to vacate.

    Because many evictions have been stayed since April 2, 2020, there is a large backlog of unprocessed cases.  In addition to previously filed cases that were stayed by the initial Executive Order, the Clerk of Palm Beach County has indicated that an additional 1,000 eviction cases have been filed since mid-March 2020. This volume of cases will be difficult for the courts to process and different judges will interpret Covid-19 emergency defenses differently, resulting in some tenants being evicted while others will remain without paying any rent. It is unclear how long it will take to clear this large backlog of evictions.

    One issue is the fact that the stay on evictions did not forgive the payment of rent.  The Executive Order specifically states, “All payments, including tolled payments, are due when an individual is no longer adversely affected by the COVID-19 emergency.”  It is not clear how many landlords will seek judgment for unpaid rent against tenants but regardless of their ability to collect on such judgment, it will affect the tenants’ ability to rent a new home or obtain credit.  However, it appears that once the courts start processing evictions, there will be many new homeless families who simply can no longer afford rent at a level prior to the pandemic.

Michael J Posner, Esq., is a partner in Ward, Damon, Posner, Pheterson & Bleau, P.L. a mid-sized real estate, estate planning and business-oriented law firm serving all of South Florida, with three offices in Palm Beach County.  They specialize in residential and commercial real estate and can assist with leases and evictions. They can be reached at 561.594.1452 or at mjposner@warddamon.com

 

Reverse Mortgage and Condominiums

     First it was Robert Wagner and now Tom Selleck selling reverse mortgages on daytime television. The commercial promises that its “not to good to be true” and that its “not just another way for the Bank to get your home.”  Repayment is due “when you leave your home” (no mention of death), and is pitched as a “way to bring a more stable and secure retirement” and allow homeowners to “stay in the home they love.”

    Reverse mortgages work by using a portion of your equity to fund the loan with the remaining equity used to pay the accruing interest on the loan such that the borrower never has to repay the loan until they either permanently leave the property, die, or otherwise default under the loan (such as for failing to pay taxes, condominium assessments or insurance). The key feature of the reverse mortgage is cash up front, especially for people with substantial equity in their home, and the lore of no monthly mortgage payments.

    What is never mentioned in Tom Selleck’s advertisement is the downside to reverse mortgages. At the very end of the ad is a disclaimer, in very small print, which actually provides a clear warning of the downsides of this program. It makes it clear that a reverse mortgage decreases your home equity through negative amortization; that borrowers are responsible for taxes and homeowners insurance; and that borrowers must reside in the home and maintain same, otherwise the “the loan becomes due and payable.” 

    Another thing not mentioned in the reverse mortgage advertisement is the high cost of a reverse mortgage. Origination fees may be as high as $6,000 plus there is normal loan closing costs and an upfront mortgage insurance premium. These fees are usually much higher than conventional mortgage loan closing fees. In addition, on top of the ongoing interest charged on the reverse mortgage, the reverse mortgage borrower pays servicing fees and annual mortgage insurance premiums equal to 0.5% of the outstanding mortgage balance.

    Using a reverse mortgage to purchase a condominium is no different than traditional mortgage financing. However, qualification for a reverse mortgage is restricted to persons over the age of 62 years old. In addition, the amount that can borrow varies substantially depending on the age of the borrower.  A younger borrower is only eligible for a smaller loan while an older borrower can borrow substantially more on the equity in their condominium. All of this is based on actuarial data regarding how long the condo owner will live so that there still sufficient equity in the property when the loan comes due.

    For example, a 62-year-old purchasing a $550,000 Florida condominium is only eligible for a reverse mortgage of $217,800 to $288,200 while a 78-year-old would be eligible for nearly $70,000 more.  In both cases, especially when considering closing costs, a substantial amount of cash would be needed to purchase that condominium, most likely in excess of $225,000 to $350,000.

    When the reverse mortgage comes due, mostly caused by an elderly borrower no longer residing in the condominium or the last surviving spouse passing away, the condominium may be sold by the owner or the owner’s heirs to pay off the reverse mortgage. This is different than traditional mortgages which do not become due and payable upon vacating the condo or dying.  With traditional mortgages the owner or heirs have the option of continuing to make monthly payments until property values go up or to keep the property as a rental income producing property. This option is not available for reverse mortgage condominium owners. The mortgage must be satisfied, or the mortgage will be foreclosed.

    Reverse mortgages on condominiums also carry with them the many restrictions that condominium themselves have on rentals and resales. For example, many condominiums prohibit renting a property for one or two years after sale. Because of the looming threat of foreclosure, it is sometimes necessary to rush the sale of a condominium encumbered by a reverse mortgage. Because of the rental restriction the market for buyers is reduced since investors or second home buyers may not be interested in a property they cannot be occasionally rented.

    Many condominiums are also age restricted, prohibiting sales to buyers under the age of 55 either in a 100% restricted community or the more common 80/20% blended community. Again, these types of restrictions make resales more difficult. All of this of course is on top of dealing with a deceased parent and the probate requirements to clear the title to the condominium. In many cases after deducting the cost of sale and ongoing, accruing interest, there is little to no equity available and therefore, in many cases, the condominium is not sold and instead foreclosed by the reverse mortgage lender.

    Deciding on a reverse mortgage is a serious, life altering decision that should not be made based on a commercial starring Tom Selleck. Sometimes things are too good to be true and reverse mortgage may be one of those for many people.

 Michael J Posner, Esq., is a partner in Ward, Damon, Posner, Pheterson & Bleau, P.L. a mid-sized real estate and business-oriented law firm serving all of South Florida, with three offices in Palm Beach County.  They specialize in real estate law and can assist sellers and purchaser with closing and financing of residential and commercial real estate.  They can be reached at 561.594.1452 or at mjposner@warddamon.com

COVID-19 effects on the Real Estate Market Part 2

    It is now been several months since the coronavirus, Covid – 19 has existed as a substantial force on the Florida economy. This impact has been felt especially hard in the real estate market, resulting in a substantial drop in the number of sales compared to 2019.

     The first quarter of 2020 reflected the strong economy with a year-over-year growth of over 10% from 2019. In addition, inventory for single-family homes was a low 3.4 months and the inventory for townhomes/condominiums was a more average 5.5 months.  The time periods from listing to contract was a short 43 days for single-family homes and only 55 days for townhomes/condominiums. 

     In addition to the strong economic news in the first quarter of 2020, the low mortgage interest rates also helped encourage sales, dropping nearly three quarters of a point from the same time in 2019, from an average of 4.37% to an average of only 3.51%.

     The effects of the virus came to a head in April, 2020. In Miami, sales declined 40% compared to April, 2019. Broward County experienced a decline of 37.4% and Palm Beach County experienced a decline of 33.8% compared to April, 2019.

     Interestingly, the median price for sold homes actually increased in April in all three counties. The median price increase in Dade County was 7.3% to $382,000 for homes and 6.9% to $265,000 for condominiums. The increase in Broward County was 6.1% to $382,000 for homes and 8% to $183,500 for condominiums. The increase in Palm Beach County was 4.3% to $365,000 for homes and 5.4% to 195,000 for condominiums

     During March and April 2020 many pending deals were canceled by purchasers asserting a force majeure clause in their real estate contract. Some buyers gave up their deposits rather than proceed to close. Others sought to delay closing or fight to obtain the return of their deposit. 

     Many sellers pulled their properties from the market and the number of active listings in Palm Beach County fell 18.5% from April 2019 to a total number of listings of 6,126. New listings eventually declined from 2019 as well, only 1,264 new listings in April 2020, a decline of 39.4%.  The time period from listing to contract also increased substantially from earlier in 2020 to nearly 76 days. This is a 21.6% increase from April 2019.

     Unlike April, sales actually picked up some in May, 2020. Sales levels are still below similar levels in May, 2019 but listings and closings increased compared to April, 2020. Houses that were withdrawn from the market in March and April were relisted in May by many sellers. While the virus has restricted sales throughout the market the effect has been less on very high-end sales in excess of $10 million.

     For homes priced over $1 million May. 2020 sales figures were encouraging. Sales surged 45% in Miami-Dade County over May. 2019 with Palm Beach County experiencing a 26% increase over May, 2019 and Broward County had a 23% increase for the same time. It is not clear if this increase will be sustained for the summer of 2020 or this just includes delayed closings from April.

     Because the combination of canceled listings and fewer new listings the inventory of homes available for sale has fallen by 28.8% for single-family homes and 12.5% for townhomes/condominiums. This equates to a 4.2-month supply of homes in Palm Beach County. This number is below the generally accepted equilibrium number of 5.5 month’s supply. When the supply is below 5.5 months it is generally considered to be a sellers’ market which is reflected in the higher median sales price for homes that actually close.

     The virus also affected the mortgage foreclosure market. The number of homes being foreclosed and sold at the courthouse has dropped dramatically. Only 24 homes were set to go to auction in June, 2020 at the Palm Beach County Courthouse compared to a total of 136 homes that were scheduled to be auctioned in June, 2019.  In addition, Fannie Mae, Freddie Mac and the Department of Housing and Urban Development of all extended their stay of mortgage foreclosures through June 30, 2020, which make up the bulk of the residential housing market. It is also possible that a further extension of that stay maybe entered depending on the status of the economy at the end of June.

     The appears in the short run that the real estate market will continue to be affected by the virus but that once the public perception is that the virus is contained and the economy is rebounding the pent-up demand for home purchases, coupled with the continuing low mortgage interest rates, should see increased sales at some point in the future.

 Michael J Posner, Esq., is a partner in Ward, Damon, Posner, Pheterson & Bleau, P.L. a mid-sized real estate, estate planning and business-oriented law firm serving all of South Florida, with three offices in Palm Beach County.  They specialize in residential and commercial real estate and can assist with a closings and loans. They can be reached at 561.594.1452 or at mjposner@warddamon.com

 

 

  

Remote Online Notarization of Estate Documents

     Last year the Florida legislature adopted a new high-tech procedure to allow for the remote execution, witnessing and notarization of legal documents, including last wills.  This procedure solves a problem when a person has to execute a will or other estate documents and cannot access a notary public or witnesses, such as when traveling overseas, on a cruise ship, bedridden, hospitalized, too ill to travel, or homebound in a lockdown situation, such as a pandemic.

     The procedure for online notarization is far more complex than a typical will signing.  For physical presence notarization, the person whose signature is being acknowledged by the Notary Public will produce appropriate identification, and then wet sign the estate documents as the necessary witnesses watch, who then wet sign themselves.  For in person estate documents, if the Notary Public may have concerns about the capacity of the person signing, they may ask a few challenge questions, such as “what is today’s date,” “who is president,” “do you know why you are here,” and “do you want to sign a will today.” 

     Starting in July, 2020, Florida will allow for online notarization of Wills, Trusts, Health Care Directives and Durable Powers of Attorney.  The procedure for completing a remote estate document package is far more onerous than the in-person notarization described above.  This is due to the perceived greater possibility of both notary fraud and the possibility of manipulation of an at-risk adult by third parties who would benefit from the estate documents to be notarized.

     The initial step is for the attorney or notary to upload the estate documents to the online notary platform.  Once uploaded they must be tagged for use.  Tags include witness tags, signer tags, notary tags and text tags (for filling in dates, id type, and checkboxes, for example).  Once tagged and ready for execution, the attorney or notary tells the system to request that the testator log in and create an account. 

     Once access is granted, the testator may review the estate documents before signing.  At the scheduled execution time, the testator will be required to have their identification scanned in using an app available on iPhone and Android smart phones.  This app is similar to apps used for mobile check deposits.  Driver’s licenses and passports are acceptable forms of identification.  Once scanned and approved, the testator will have a maximum of two minutes to answer five multiple choice questions, which are soft pulled from credit reports, such as where did you live in 1995, what car do you own and the like.  If the testator gets eighty percent correct, they then get to proceed to the execution phase. If the testator fails this test twice, the testator is locked out of the system and unable to sign using a remote notary for a period of twenty-four hours.

     Signing the estate documents requires a desktop computer or laptop with a webcam and microphone.  The testator must be running Chrome or Firefox (no Safari) to sign.  At the same time the testator is online, the notary and the witnesses will also be online either remotely or, as to the witnesses, with the testator. 

     The notary must then verify that the testator is not (i) on drugs or alcohol that impair mental function; (ii) verify no physical or mental condition or long-term disability that impairs the ability to perform the normal activities of daily living; and (iii) ask if the testator  requires assistance with daily care.  If any answer is affirmative, then the estate documents may only be completed if the witnesses are physically present with the testator.  In addition, the notary must advise the testator that if they are a vulnerable adult, the estate documents they are about to sign will not be valid if witnessed by means of remote audio-video communication technology.   

     Once the foregoing provisions are met, the notary must then verify five questions:

           1.       Are you currently married and if so, what is the name your spouse.

           2.     Who assisted you in accessing this video notarization today.

           3.     Who assisted you in preparing the estate documents you are signing today.

           4.     Where are you currently located?

           5.     Who is in the room with you?

     The notary must weigh all of the foregoing before allowing the estate documents to be executed.  Any invalid responses may form the basis of invalidating the estate documents in a later legal challenge.

     Once all the estate documents are signed, they will be given a special encryption key which is designed to prevent future alteration.  In addition, the notary host site creates a digital log of all transactions and a video record of the closing, which must be deposited with a qualified custodian until the testator dies, in which event the electronic estate document must be filed with the court.  While more onerous, the ability to remotely notarize estate documents will facilitate planning when other solutions are unavailable.

 Michael J Posner, Esq., is a partner in Ward, Damon, Posner, Pheterson & Bleau, P.L. a mid-sized real estate, estate planning and business-oriented law firm serving all of South Florida, with three offices in Palm Beach County.  They specialize in probate, estate and trust planning and can assist with a variety of estate documents including remote and electronic estate documents.  They can be reached at 561.594.1452 or at mjposner@warddamon.com