Electronic Notarization Comes Alive in Florida, and Electronic Notarization and Witnessing of Wills and Trusts Comes Along for the Ride [Florida]

A 78 page bill on the subject of electronic and remote notarization and witnessing of documents was approved by the governor two days ago. Here is some info to start to get you up to speed.

General Provisions:

In addition to the statute, the Florida Department of State will adopt rules that online notaries will need to follow.
Online notarization is conducted through and requires audio-video communication technology.
Notarial certificates should indicate whether they are notarizing in person or online. Sample certificates are in the new statute.
The online notary must confirm the identify of the principal, either by personal knowledge or all of the following: remote presentation of identification, credential analysis of identification provided, and identity proofing based on knowledge-based authentication or similar method. Credential analysis involves a third party aiding the notary in affirming the validity of government-issued identification credentials. Identify proofing involves a a third party affirming the identity of an individual through use of public or proprietary data sources, including knowledge-based authentication (question and answer systems) or biometric verification. . .

Recent News

24 Feb 2022

Article by Charles and Jenna Rubin featured on cover of Florida Bar Journal

An article written by Charles Rubin and Jenna Rubin is featured on the cover of this month’s Florida Bar Journal and can be found here.

27 Dec 2021

Jenna Rubin appointed to ACTEC Fiduciary Litigation Committee

Gutter Chaves is pleased to announce that Jenna G. Rubin has been appointed to the Fiduciary Litigation Committee of the American College of Trust and Estate Counsel (ACTEC) for the 2022-2023 year.

14 Dec 2021

FBAR Case Reversed – Nonwillful Filing Penalties Based on Number of Accounts Not Reported

Back in 2000, I wrote here about a case where a taxpayer did not report multiple foreign accounts on an FBAR. The question for the court was whether the $10,000 penalty for a nonwillful failure to file meant $10,000 per return not filed, or $10,000 per account not reported on the return. For . . .

22 Nov 2021

Of Spousal Gifts and the Substance Over Form Doctrine

U.S. spouses each have a unified credit that allows for substantial gifting to third parties without requiring the payment of gift tax. What happens if one spouse has assets to be gifted away, but that spouse does not have sufficient remaining unified credit exemption to cover the gift and wants to use the exemption of the other spouse?

At times, the spouses can agree to split the gift for gift tax purposes, which treats 1/2 the gift as coming from each spouse. This allows the unified credit of the spouse not making the gift to be used to avoid gift tax on the 1/2 that such spouse is treated as making. However, it can be an imperfect solution if the spouse with the assets does not have enough unified credit to offset his or her 1/2 of the gift.

Oftentimes, the parties may contemplate having the party with the assets transfer them by gift to the other spouse (a tax-free gift under the gift tax marital deduction), and then the receiving spouse makes a gift to the third party applying his or her own unified credit. The question in these circumstances is whether the IRS will respect the transaction and allow the receiving spouse’s unified credit to be applied to the gift to the third party, or whether it would seek to apply the “substance over form” doctrine to treat the gift as coming from the spouse who transferred the assets to the other spouse and does not have enough unified credit to fully cover the gift.

This is not a black and white issue. On one end of the spectrum. . .

22 Nov 2021

Jenna Rubin speaks at Probate Law seminar

On November 19, 2021, Jenna Rubin, along with Jeffrey Baskies, presented at the Florida Bar Real Property and Probate Law Section’s 2021 Probate Law CLE on, “No Pen, No Paper, No Problems? The New World of Electronic Wills.”

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