We live in a digital era where DocuSign and Dropbox Sign (formerly known as HelloSign) are commonplace. Thus, it is reasonable to ask whether it’s possible to sign estate plans in Texas electronically. The short answer is “No.” Let’s delve deeper into what makes a valid Will in Texas and why the state requires “wet” or “ink” signatures on all estate planning documents.
What Makes a Valid Will in Texas?
In order for a Last Will and Testament to be valid in Texas, the person creating the Will (the testator), must have testamentary capacity and intent. In addition to testamentary capacity and intent, the testator must observe certain formalities. The state of Texas recognizes two types of Wills: Attested and Holographic Wills.
An attested Will is a Will that is not entirely in the handwriting of the person making the Will. This is typically a typewritten Will, like those prepared by an attorney. To be valid, it must be signed by the testator (or another person at the testator’s direction and in the testator’s presence), and witnessed in the testator’s presence by at least two credible, disinterested witnesses over the age of 14.
Our competent and diligent attorneys at the Kazi Law Firm add a “self-proving affidavit” to Wills. This additional and precautionary step is to prove up the validity of the Will, which saves time and expense during probate. The testator, witnesses, and a notary all sign the self-proving affidavit in the presence of each other.
A holographic Will is a handwritten Will. To be valid, it must be wholly in the handwriting of the person making the Will. Thus, a Testator does not have to sign a holographic Will in the presence of witnesses or a notary for it to be valid. However, please note that a “fill in the blank” Will template found online, with certain blanks filled in by hand, will likely not meet the requirements of a legally valid holographic Will.
Can I E-sign my Estate Plan?
In Texas, the answer is “No.” Several states have enacted statutes or are currently in the process of considering electronic Will statutes. Unfortunately, the Lone Star State is not one of them. Texas does authorize the electronic execution of certain legal documents through the use of the Texas Uniform Electronic Transactions Act; however, the Act specifically provides that Wills, and codicils cannot be
signed electronically. Thus, in Texas, Testators have to sign estate plans the old-fashioned way – on paper with preferably a blue ink pen.
Do we think Texas may follow suit with other states and allow e-signatures on estate plans in the future? Maybe. It is a possibility. However, if there is one thing you know about Texas, we do things our own way and are not persuaded by what other states in the country are doing. Until a statute is enacted allowing electronic signatures on estate planning documents, we will continue requiring “wet” signatures on all plans in order to render them legally effective.
Can My Estate Plan be Notarized Online?
Texas has a statute that authorizes notaries to perform a notarization remotely. The statute provides that a person can “personally appear” before a notary by appearing in a two-way audio and video communication that meets the procedures set by the Texas Secretary of State.
However, the language of the statute suggests that online notaries can only notarize electronic signatures. The Texas Uniform Electronic Transactions Act does not permit Testators to sign Wills and Codicils electronically; therefore, Wills and other estate planning documents cannot be notarized online.
Can My Estate Plan be Witnessed Online?
To be valid, a Will must be signed by the testator and signed in the Testator’s presence by at least two credible, disinterested (not related to you by blood or marriage) witnesses. In this age of technology, some clients have asked whether individuals witnessing the Will signing via Zoom or other video conferencing applications will satisfy the “presence” requirement.
Unfortunately, there is no authority of which I am aware that supports the idea of witnesses appearing virtually would satisfy the requirement that witnesses be in the testator’s presence when they sign the Will.
As you can see, there are certain formalities for estate plans in Texas that must be abided by to be legally effective. Even in this current digital age, the state is holding on to our traditional (some may call it archaic) principles requiring estate plans to be signed, witnessed, and notarized in person.
Should you have any questions, please feel free to contact our attorneys at the Kazi Law Firm, that can guide you through the estate planning process in a seamless and efficient manner.