Clients are suddenly thinking about their lack of estate planning in the face of the current pandemic. But with social distancing, law offices closed and notaries in short supply, can anyone get their new documents executed?

Electronic signatures:  Can clients just use an electronic signature to stamp their documents?  According to the Texas Uniform Electronic Transactions Act, no.  There may be some instances of health care directives and preferences that can be created, digitally signed and stored on line by individuals on a website like mydirectives.com but for documents prepared by an attorney on behalf of a client, physical signatures are needed.

Can we simply mail documents to the clients for their signatures? Or do they need to be notarized? What about witnesses?

• Documents that only require the client’s signature:
  • Trusts
  • Holographic wills
  • Holographic declarations of appointment of guardian for child(ren) in the event of death or incapacity
  • Holographic declarations to designate guardian of declarant before need arises
• Documents requiring a notary:
  • Financial/Durable powers of attorney
  • Medical directives and powers of attorney (either two witness OR a notary)
  • Declarations to designate guardian of declarant before a need arises (if it does not expressly disqualify anyone from serving)
  • Self-proving affidavits for wills
  • Self-proving affidavits for declarations to designate guardians for self or children
• Documents requiring witnesses (in the presence of the client):
  • Wills
  • Medical directives and powers of attorney (either two witnesses OR a notary)
  • Declarations of appointment of guardian for child(ren) in the event of death or incapacity
  • Declarations to designate guardian of declarant before a need arises, if the document expressly disqualifies someone from serving.

Governor Abbott has now issued an order temporarily allowing notaries to acknowledge certain documents by videoconference, specifically, self-proving affidavits, durable powers of attorney, medical powers of attorney and directives to physicians.  This is helpful and allows for the execution of almost all of the planning documents we recommend for our clients. But while this order modifies requirements for the physical presence for a notary, it does not change the requirements for the physical presence of witnesses.

If a client is unable to be in the physical presence of two credible (age 14 or over and can’t take under the Will) witnesses to their will due to illness or social distancing, one option may be to complete a trust for the client’s signature and then instruct the client on how to complete a holographic will that leaves everything to the trust.

The estate planning section of CCJ is working tirelessly to keep up with current demand. We are finding ways to accommodate everyone who needs a plan.

About the Authors:

Rebecca D. Grant is an attorney who practices in the areas of estate and probate administration, guardianship proceedings, mental health commitments, and fiduciary litigation, representing executors, administrators, guardians or families seeking to establish guardianships over their loved ones. She also represents clients litigating matters like will contests and contested guardianships.  Contact Rebecca at: [email protected] or 713.752.8661.

Jocelyn T. Slater represents clients in probate, guardianship, trust and fiduciary litigation, and business litigation. Jocelyn found a passion in navigating her clients through the complexities existing in the Texas probate system and advocating for their interests during their greatest time of need.  Contact Jocelyn at: [email protected] or 713.752.8662.