During the COVID-19 epidemic, most law firms are protecting their clients and staff by not conducting signings of wills and other legal documents in their office in the usual manner. Some clients are wanting to execute their documents right away. How can these documents be signed when the law office is closed?
Many people have asked us if they can sign their estate planning documents by using a program such as DocuSign for electronic or digital signatures. Clients cannot use a digital signature to sign a will or codicil. It’s not clear whether a digital signature can be used for a durable power of attorney, but it may not be accepted if digitally signed. Medical powers of attorney and directives can be signed digitally if done correctly. It may be possible to use online notarization for the medical documents.
Notarizing by video conference is not allowed. The client cannot be on a video conference with a notary and sign before the notary on the conference call. The client must physically be in the presence of the notary. Electronic notarization is allowed for some documents. But the notary must be registered and certified as an online notary—a regular notary is not authorized to do online notarization.
Although we have always had our clients’ signatures notarized when signing a trust, Texas law does not require notarization. Therefore, a trust could be emailed to the client, and then they print it out and sign it at home. However, if the client wants to transfer assets to the trust, that could be problematic during stay-at-home orders.
Wills must be signed by the Testator physically in the presence of two witnesses (who are not heirs). Notarization is not required for a valid will. Notarization is required in order for the will to be self-proved (which means that when the will is probated, the witnesses don’t have to come to court to verify the signature). It is possible to sign the will in the presence of two disinterested witnesses, and then do a notarized self-proving affidavit later. If the client dies without the self-proving affidavit, the witnesses may have to appear in court to testify as the will signing. Clients can also sign a holographic will, which in wholly in the testator’s handwriting, with no witnesses. If the client has a revocable living trust, the holographic will could leave the clients’ assets to the trust. Clients should consult with an attorney regarding required provisions for a hand-written will.
Durable (Financial) Powers of Attorney
These must be physically signed in the presence of a notary. An unsworn declaration cannot be used. Can you use an online notary? It doesn’t appear so. Under Texas law an online notary can only acknowledge digital signatures (not a pen on paper signature), and the law is not clear that online notarization will be accepted for durable powers of attorney. It appears that physically signing in front of a notary is required in order for a third party to honor the durable power of attorney.
Medical Powers of Attorney and Medical Directives
These must be signed either in the presence of a notary or in the presence of two witnesses (and the witnesses must meet the requirements of the Texas Health and Safety Code Sec. 166.003. You may be able to use an online notary if you are executing the documents electronically.
Will there be State Emergency Orders Affecting This?
Some states are relaxing the requirements regarding the physical presence of the notary, by enacing an emergency order or an executive order. We have not received such an order in Texas.
What is the Weeks Law Firm Doing?
Right now we are scheduling signing appointments for estate planning documents for May, 2020. If the client is only doing a trust or trust amendment (and not a will or durable power of attorney), we may be able to email the trust to the client for them to download and sign. Special arrangements need to made with our office.