Remote Notarization of Estate Planning Documents
On March 13, 2020, Texas Governor Greg Abbott issued a disaster proclamation as a result of the COVID-19 pandemic. As a result, Governor Abbott relaxed several estates and notarization requirements. In April 2020, he released two executive orders: the Estate Planning Order, issued on April 8, and the Real Estate Order, issued on April 27. The first order allowed online remote notarization of certain estate-planning documents, suspending certain Estate Code statutes requiring in-person presence. These documents included: self-proved wills, durable power of attorney, medical power of attorney, directives to physicians (also called a “living will” outside of Texas), and the oath of an executor, administrator, or guardian. Notably, however, Governor Abbot did not suspend the requirement for two witnesses to be physically present at the signing of the self-proved will, even if the will is remotely notarized.
The Estate Planning Order suspended the following relevant statutes:
- Tex. Estates Code § 251.104(b)
- Tex. Estates Code § 251.1045(a)
- Tex. Estates Code § 751.0021(a)(4)
- Tex. Health & Safety Code § 166.154(b)
- Tex. Health & Safety Code § 166.032(b-1)
- Tex. Estates Code § 305.054
- Tex. Estates Code § 1105.052
Respectively, these statutes concerned the requirements for self-proving affidavits, their execution and attestation, the requirements for durable power of attorney, and the administration of an oath or declaration. Importantly, this executive order only applies to self-proved wills, which are wills with self-proving affidavits attached. Texas has a substantial compliance doctrine written into statute allowing courts to employ a flexible approach to defective testamentary instruments—but only for self-proving affidavits, not wills proper. Therefore, the scope of this order is still relatively narrow.
The suspension of these statutes allows notaries and will signers to use video conferencing software to satisfy the “personal appearance” requirement for these documents. The process enables notaries to identify the signers on camera; signers then fax or electronically send their signed documents to their notary, who completes the notarization. Once the notary sends the signed, notarized document back to the signer, it may be considered complete under the administrative guidelines. While this approach may be difficult for individuals with limited access to or knowledge of technology, it does help technologically literate individuals who must stay home due to continued public health guidance or personal health concerns.
The Real Estate Order permitted the remote notarization via videoconference of various non-testamentary documents, including real estate documents like deeds and mortgages (in Texas, referred to as “deeds of trust”). This order has several distinctions from the Estate Planning Order. Firstly, it imposes several more stringent requirements, including necessitating the document’s signer and notary both be physically located within the State of Texas during the videoconference.
The benefit of this relaxed requirement for estate planning is its flexibility in accounting for the myriad ways COVID-19 has affected mobility and accessibility, either through lockdowns or travel restrictions. This was especially true in 2020, when many people were “stuck” in lockdown at the place they were domiciled at the start of the first wave of the pandemic, regardless of whether they were residents of Texas. The Real Estate Order also only suspends the need for in-person notarization by acknowledgment, not those documents which must be “sworn to” before a notary, such as affidavits and declarations. Thus, these documents are not within the purview of the executive order.
Other States and Future Changes
As of September 19, 2022, Governor Abbot has extended by executive order the COVID-19 disaster declaration, maintaining in place the relaxed notarization requirements. However, the order continues to apply only to manually signed documents that are then electronically transmitted to a notary, not electronically signed documents. In contrast, several states have adopted electronic wills statutes into their state codes, allowing will signers to electronically sign their wills. In 2019, the Uniform Law Commission introduced the Uniform Electronic Wills Act (UEWA). Eight jurisdictions have since introduced legislation to enact the UEWA into their state probate codes. Utah, Washington, North Dakota, Colorado, and the US Virgin Islands have all enacted state e-wills statutes. The UEWA declares that courts may probate electronic wills (e-wills). The UEWA allows courts to probate e-wills. It enumerates requirements for executing and revoking an electronic will; simultaneously executing, attesting, and self-proving an e-will; and certifying a paper copy of an e-will. It also provides its own harmless error provision.
At present, the Texas Legislature has adopted several economic adaptations into its procedural statutes, allowing for e-filing to probate courts. It authorized electronic signing of certain legal documents pursuant to the Uniform Electronic Transactions Act, though this Act excludes wills and codicils. Given increasing logistical difficulties in storing physical wills, and the continued effects of the COVID-19 pandemic, the next logical step for the Legislature is to adopt a form of the UEWA into its statute. The pandemic has shown probate courts and administrators that accessibility in the will execution process is a long-term goal to ensure every testator can make their final intentions as clear as possible before their survivors begin the probate process.