Estate Planning

Planning for Special Circumstances

Can I Sign My Will Electronically in Texas?

by Rania Combs

UPDATE: On April 8, 2020, Governor Abbott issued an order temporarily allowing regular notaries to notarize the following documents by video conference: durable powers of attorney, medical powers of attorney, directives to physicians, and self-proving affidavits for Wills. Please note, however, that the order does NOT eliminate the requirements for witnesses to be physically present. The order will remain in effect until the governor terminates it, or until the March 13, 2020 disaster declaration is lifted or expires. You can read the Governor’s press release by clicking on the following link: Governor Abbott’s Order.

The COVID-19 pandemic has increased the number of
people seeking estate planning services. And while it’s possible to work with
attorneys online to prepare estate planning documents, getting those documents
signed in compliance with statutory requirements can be a challenge.

The reality in which we find ourselves has prompted questions about whether it is possible to sign Wills digitally in Texas. It’s a reasonable question to ask because we are all used to services like DocuSign that allow us to execute other legal documents digitally.

What Makes a Will Valid in Texas?

For a Will to be valid in Texas, a person making a Will (the testator), must have testamentary capacity and intent. In addition to testamentary capacity and intent, the testator must observe certain formalities.

Texas recognizes two types of Wills: holographic Wills and attested Wills.

A holographic Will is a handwritten Will. To be valid, it must be completely in the handwriting of the person making the Will. There is no requirement that the Will be witnessed or notarized to be valid. Note that a “fill in the blank” Will, that is mostly typewritten with certain blanks filled in by hand, will likely not meet the requirements of a holographic Will.

An attested Will is a Will that is not wholly 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 witnesses over age 14.

Attorneys typically add a self-proving affidavit to Wills they prepare because it proves 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.

Can I Electronically Sign My Will?

The short answer is: no.

Although several states have enacted statutes or are currently in the process of considering electronic Will statutes, Texas is not one of them.

Texas does authorize the electronic execution of certain
legal documents through use of the Texas Uniform Electronic Transactions Act;
however, the Act specifically provides that Wills, and codicils cannot be
signed electronically.

In Texas, Testators have to sign Wills the old fashioned way – on paper.

Can I Get My Will 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 witnesses. In this age of social distancing, some 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 which supports the idea that witnesses appearing virtually would satisfy the requirement that witnesses be in the testator’s presence when they sign the Will.

Can I Get My Will 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 Secretary of State.

However, the language of the statute suggests that online notaries can only notarize electronic signatures. And since the Texas Uniform Electronic Transactions Act does not permit Testators to sign Wills and Codicils electronically, Wills also cannot be notarized online.

As a result, signing estate planning documents right now requires some creativity. For information about how to execute estate planning documents during this unprecedented time, read: How To Sign Estate Planning Documents During a Pandemic.

Will Texas Relax Witness and Notary Requirements?

In light of the unprecedented situation we face, and the importance of executing estate planning documents, some states have relaxed notarization and witness requirements to allow clients to execute documents remotely.

For example, Missouri’s governor issued an executive order that temporarily suspends laws requiring the physical presence of any testator, trustmaker, witness, or notary for effective execution of estate planning documents.

As noted above, Governor Abbott issued an order relaxing notarization requirements on April 8, 2020.


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Comments

  1. Dan Branum

    April 8, 2020 at 11:31am

    I’ve been trying to raise this issue every chance I get. We do basic wills and estate planning at our office, and the demand had increased since this pandemic started–but getting everything executed is the real challenge, especially for the elderly and people with health issues where even a single meeting with someone is a risky proposition.

    My viewpoint is if waiters can be allowed to deliver Old Fashions to people’s doorsteps, attorneys ought to be permitted to conduct online notarization of wills with witnesses watching online. And I believe there are ways to insure the original intent of the rules are adhered to with online notarization, if only we can get the law to catch up with tech.

    Additionally, the rules on online notarization in general need to be relaxed. I’m a notary, but becoming an online notary in Texas is a complicated and confusing proposition. Thanks for the article. -Dan

    1. Rania Combs

      April 8, 2020 at 11:46am

      Thanks for your comment, Dan.

  2. Daniel Goldstein

    August 13, 2020 at 6:50pm

    So this means while electronic notarization is permitted, the testator and witness signatures are electronic signatures, right?

    1. Rania Combs

      August 14, 2020 at 5:21pm

      No. The Will must be signed the old-fashioned way – on paper.

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