This column first appeared in the San Antonio Express News and other Hearst Newspapers on March 30, 2020.
Dear Mr. Premack: My wife and I are new to Texas and were supposed to sign Texas Wills and other legal documents Thursday of this week. Because of the stay at home orders we were unable to sign and will need to delay until everyone can get back to business as usual. We have been hearing of being able to sign some types of legal documents using eSignatures. What is Texas law actually saying about using electronic signatures for a Will and estate planning documents? Thanks, we enjoy your columns. MMT
Stopping the spread of the coronavirus is the highest priority. During the lock-down, the health and safety of the public, including clients, staff, and attorneys, must be protected. Law offices should schedule meetings by telephone or by video conferencing, avoiding face-to-face appointments. The courts have imposed restrictions, limiting access, holding hearings by video conferencing, or delaying many proceedings.
Meeting face-to-face to sign legal documents is a health threat. Consultations can be by phone or video. You can still talk with your attorney, get guidance on decisions, and determine the shape of your estate plan. Your attorney can still write your documents, which can be reviewed by phone or video. But meeting to sign planning documents is very difficult during the shelter in place restrictions.
Why not use e-signing, which is otherwise fairly common? Because signing estate planning documents is by law more restrictive that signing contracts and commercial documents. The Texas and federal e-signing statutes expressly exclude e-signing of Wills.
Texas law provides only two ways to sign a Will. First, the Will can be entirely in your own handwriting, dated and signed only by you. But 1) most people don’t know what technical legal provisions a correct and proper Will should include, so they omit cost saving important legal provisions, and 2) someday when you die, proof of the handwritten Will’s validity must be produced in court. So, handwriting your Will is not the recommended approach.
Second, the Will can be typed, then signed by you in the presence of two witnesses who also sign in your presence. But health restrictions make “presence” problematic. Even if you find two willing witnesses, they will someday have to appear in court about the Will’s validity. Court testimony can be avoided entirely if the Will signing is done before a notary to sign a “self-proving affidavit”, but that exposes everyone to additional health risk. In normal times, the best Will signing involves you and three other people, which is why the Covid-19 lockdown is such a roadblock.
Trust agreements can be signed without witnesses, but they cannot be e-signed because they do not involve a commercial transaction. Notarization is highly recommended, and if omitted may cause banks and brokers to refuse to accept the un-notarized trust. They would be unlikely to accept a trust that is e-signed.
Durable powers of attorney are also excluded from e-signing unless specifically for a commercial transaction. They are only valid when signed before a notary. Further, the new law which allows e-notarizations only applies to documents that are being e-signed. Since a Durable power of attorney cannot legally be e-signed, it cannot legally be e-notarized.
Medical powers of attorney and Directives to Physicians can be e-signed because the Texas Health and Safety Code specifically authorizes e-signing them. But they need a notary, so if e-signing then you must also use e-notarization. You could instead use two witnesses, but as with a Will, that exposes more people to risk.
Hence, unless you can find a zero-exposure environment, gathering to sign estate planning or probate documents should be delayed until the government lifts the shelter in place restrictions.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.