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Estate Planning in Texas During these Uncertain Times

Author: Rafael Ylanan

**This article is being updated due to Governor Abbott’s order which temporarily suspended certain statutes thereby allowing the appearance before a notary public via videoconference effective April 8, 2020 until terminated by the Office of the Governor or until the March 13, 2020 disaster declaration is lifted or expires.[1]**

While the effects of this pandemic are wide-reaching, this article is provided to show, while different, life goes on and so can estate planning.

One issue that this pandemic has raised deals with the proper execution of certain underlying estate planning documents, specifically wills, trusts, and powers of attorney. Prior to this pandemic and the stay-at-home orders, it wasn’t an issue gathering the testator, witnesses, and notary together in one room to get all of these documents properly executed; however, that has all changed and the use of electronic signatures and online notaries is not the simple answer, but with Governor Abbott’s order, it may have become easier.

Use of Electronic Signatures on Certain Estate Planning Documents

While the Texas Uniform Electronic Transactions Act[2] allows for the electronic execution of documents relating to a transaction through the use of electronic signatures, this Act specifically does not apply to “a law governing the creation and execution of wills, codicils, or testamentary trusts.”[3] In addition, powers of attorney might not fall within the meaning of a document relating to a transaction,[4] and, therefore, should not be executed electronically.

Although Governor Abbott’s order suspended certain statutes, insofar as they relate to signing documents before a notary public via videoconference, the suspension does not appear to suspend any statute relating to the use of electronically created signatures. Therefore, the prohibition on using electronic signatures in the creation and execution of wills, codicils, or testamentary trusts, appears to still be applicable. However, the suspension does allow for the electronic transmission of “wet” signatures by electronic means.

Use of Online Notaries

Texas does allow electronic notarizations[5]; however, the Texas Secretary of State mentions that “an electronic notarization must meet all of the requirements of any other notarization, such as the requirement that the signer personally appear before the notary to acknowledge the document.[6] To satisfy the requirement that the signer personally appear before the notary, Subchapter C of Chapter 406 of the Texas Government Code provides for the use of two-way audio and video conferencing; however, the online notary may only utilize this online procedure to notarize an electronic signature.[7] As discussed previously, the use of electronic signatures on wills, and most likely powers of attorney, are not permitted under the Texas Uniform Electronic Transactions Act. However, pursuant to Governor Abbott’s order, a regular notary public, using two-way video and audio conference technology, can now acknowledge certain documents without the need for the signatory’s physical presence. The process is as follows:

“A notary public shall verify the identity of a person signing a document at the time the signature is taken by using two-way video and audio conference technology.

A notary public may verify identity by personal knowledge of the signing person, or by analysis based on the signing person’s remote presentation of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the person.

The signing person shall transmit by fax or electronic means a legible copy of the signed document to the notary public, who may notarize the transmitted copy and then transmit the notarized copy back to the signing person by fax or electronic means, at which point the notarization is valid.”[8]

Because this order allows a notary public to acknowledging a document that was “wet” signed remotely, this order is applicable to acknowledging signatures on self-proving affidavits for wills and durable powers of attorney.

What is our solution?

Although Governor Abbott’s order is a step in the right direction, our solution is still a revocable trust and holographic pour-over will. The reason being the order does not suspend the requirement of physical presence of qualified witnesses in order to properly execute a typed attested will.[9]

There are no special requirements dealing with the proper execution of a trust other than it has to be “written evidence of the trust’s terms bearing the signature of the settlor or the settlor’s authorized agent.”[10] Additionally, a revocable trust does not require the presence of witnesses to be properly executed. The estate planning attorneys at Kearney, McWilliams & Davis, PLLC, can prepare as complex of a revocable trust as needed to meet your estate planning goals, and you can execute it in the comfort of your home all while complying with stay-at-home orders and social distancing. However, the provisions of a trust are only applicable to property and assets held in the trust. That brings us to step 2 of our solution, a holographic will.

In general, a will must be 1) in writing, 2) signed by the testator in person or another person on behalf of the testator in the testator’s presence and under the testator’s direction, and 3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.[11] However, there is an exception for holographic wills. [12] A holographic will is a will that you have written wholly in your handwriting. If the will is written wholly in your handwriting, witnesses are not required.[13] To assist you with the wording of your holographic will and to properly transfer all probate assets to the prepared revocable trust, the estate planning attorneys at Kearney, McWilliams & Davis, PLLC, will provide you with a pour-over will that you will copy, verbatim, wholly in your handwriting, sign, and date.

While this may not be the perfect solution for all of your estate planning needs, it’s a solution that may suffice during these uncertain times.

 

[1] https://gov.texas.gov/news/post/governor-abbott-temporarily-suspends-certain-statutes-to-allow-for-appearance-before-notary-public-via-videoconference

[2] Texas Business and Commerce Code Chapter 322.

[3] Texas Business and Commerce Code Section 322.003(b)(1).

[4] Texas Business and Commerce Code Section 322.002(15).

[5] Texas Government Code Chapter 406, Subchapter C.

[7] Texas Government Code Section 406.110(b).

[8] https://gov.texas.gov/news/post/governor-abbott-temporarily-suspends-certain-statutes-to-allow-for-appearance-before-notary-public-via-videoconference

[9] Although the arguments and case law regarding the definition of “physical presence” are plentiful, that discussion is outside the scope of this article.

[10] Texas Property Code Section 112.004.

[11] Texas Estates Code Section 251.051.

[12] Texas Estates Code Section 251.052.

[13] Id.

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