23 Mar 2020

Is it possible to get a Will completed and signed while under a quarantine?

Due to the current pandemic, this is now a common question I hear.  Before going into detail about how this is possible, the answer is: Yes. While not an ideal situation, Texas law allows for the creation and execution of effective estate planning instruments even for a person under quarantine. Below I will highlight a few of the problems presented by COVID-19 in relation to estate planning, I will then present solutions that conform with the Estate’s Code and other Texas law. I hope to give guidance to people who are social distancing or under a self-imposed or mandatory quarantine. Keep in mind that all situations are different, and the discussion below is not a solution for every person. This is not legal advice, and I highly recommend consulting with an experienced Texas Probate and Estate Planning Attorney for your best solution.

Witnesses cannot be in presence of Testator who is isolated or quarantined.

Sec. 251.051(3) of the Texas Estates Code requires a Testator sign the Will in the presence of two or more credible witnesses. This presents a problem for those who are under either voluntary or mandatory isolation.  People have asked me if these witnesses could witness over video conference. I have not found any case law supporting this method. The phrase in the statute “in the testator’s presence” seems to clearly require the witnesses be near the testator.

The solution for this problem is what the Estates Code Sec. 251.052 calls a “holographic Will.” Holographic Will is just a fancy name for a handwritten Will. A will “wholly written in the testator’s handwriting is not required” to have the witnesses discussed above. Be aware that this is not a fill-in-the-blank Will. Every part of the Will must be written by the testator in their own handwriting. These handwritten Wills can be very simple, and Texas law is quite broad in what they consider valid. But, I again highly recommend consulting with an experienced attorney before attempting to create a valid handwritten Will on your own.

Handwriting a proper, thorough Will is difficult.

If at all possible, I do not ever recommend someone attempt to hand-write their complete Will on their own. Other than the witnesses, the handwritten Will must still conform to the other formalities required under the law. Also, handwriting is often hard to read. This can lead to problems of interpreting the Will in the future. This can result in costly litigation for the beneficiaries of the Will. The solution could be what is commonly called a pour-over Will. A pour-over Will is a very simple Will that devises all of the testator’s property to a named trust.

The trust named in the pour-over Will can express in detail how the testator’s property should be distributed upon death. For this to work, a valid trust must be created and named in the Will. An experienced Texas Probate and Estate Planning Attorney can assist the testator in the creation of a valid trust to name in the Will. The attorney can then email or get a hard copy of the trust to the testator for the testator to sign. This will avoid any violation of the testator’s isolation.

What about a notary?

Texas law does not require notarization of the handwritten Will, nor the trust named therein. However, I always recommend notarization of trusts. Also, a handwritten Will is not self-proved without a  notarized Affidavit. Luckily, Texas law allows for another solution: Virtual Notary.

Texas law allows virtual notaries to witness document executions over a live video connection. The execution is recorded, and the notarization is just as valid as a traditional notary in-person. Should you need a notary, but wish to do it virtually, contact us and we will help.

Summary

While isolation of a person wishing to execute a valid Will in Texas presents problems, the Texas Estates Code allows for the creation of a holographic pour-over Will in conjunction with a valid trust that can be a very effective estate planning tool. Additionally, the holographic Will can be self-proved with the use of a virtual notary, and that same virtual notary can also notarize the trust agreement all over video chat without compromising any form of isolation. Keep in mind these are temporary solutions and not ideal. After the testator stops isolation, I recommend traditional estate planning methods.

 

This Post Has 2 Comments

  1. Great article.

  2. Very helpful information.

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