This column first appeared in the San Antonio Express News and other Hearst Newspapers on February 18, 2019.
Dear Mr. Premack: My grandmother while in ICU stated that she wanted all she owned including her house to go to me and my bother in law. This was caught on cell phone video. She was later released into hospice care and died 20 days later, therefore never had to opportunity to put it in writing. Would a video be viable as a will in Texas? – DT
Wills deal with the transfer of valuable properties – both real estate and funds – so the law imposes formalities that are intended to increase dependability and reduce ambiguity. An analogous idea is the ancient (yet still applicable) statute of frauds, which states that certain promises must be in writing to be valid.
Consequently, Texas (and most other states) will only recognize promises as a Will if the promises are made with these formalities: The promise must be in writing and must show intent to dispose of assets after death. The writing must be dated and must be signed by the Testator (the person whose Will it is). If it is written entirely in the Testator’s handwriting, it is called a Holographic Will. If it is typed or in someone else’s handwriting (called a Formal Will) then it must also be signed by two independent witnesses, and (if the Will is to be treated as self-proven) be notarized. The Testator must also have legal capacity for the Will to be valid.
Texas used to recognize a category of spoken Will (called a “nuncupative Will”), but the law was changed to eliminate verbal Wills. Even when they were legal, they could deal only with inexpensive personal effects.
Some states have recently legalized “digital Wills”. Florida and Nevada allow a person to make a Will online or on their computer, and never have it transferred to paper. They allow e-signatures for these digital Wills. Ohio and New Hampshire have entertained bills to allow digital Wills but have not passed them into law. The Florida law requires that the digital Will be e-signed, be witnessed by two independent people, and (if the Will is to be treated as self-proven) be e-notarized. The digital Will process is not available to any person in an end-stage condition or who is legally categorized as a vulnerable adult. Further, the creation of the digital Will must be video recorded following a specific script.
That is as close as the law gets to a video Will in other states, and it is not at all close to Texas law. Texas does not in any way recognize a video recording as a valid legal Will. Texas does not allow digital Wills and has not adopted anything remotely similar to the Florida digital Wills law. The cell phone video of your grandmother’s statements do not qualify as a valid Will in Texas (and would not qualify even under the new Florida law if she had lived in Florida).
Consequently, your grandmother died intestate (without a Will). Texas law passes her assets according to a complex weave of possibilities, depending on her relationships. If she was married and all children are of that marriage, her assets to go her spouse. If she was married and had children from a prior marriage, assets are split unevenly between those children and the spouse. If there is no spouse, assets go to her children, etc., etc., etc. The complexity of the intestacy law is compounded by the burdensome and expensive legal process needed to prove exactly who are her heirs.
If she had made a proper legal Will, all those legal issues would have vanished. Not to be critical of her, but any person old enough to own a house – let alone old enough to be a grandmother – should have addressed these issues. All readers should visit a qualified Elder Law Attorney to make a Will or to discuss other planning alternatives that can save time, save money, and save heartache for your survivors.