An Idea Before its Time
Sometimes it seems as if you can do anything online – order groceries, close on your home sale, buy a gift and have it delivered in time for your mother’s birthday. Electronic signatures are even more ubiquitous. There is no question that online commerce provides convenience and uniformity in transactions.
Yet your estate plan still requires the use of pen and paper.
How is it possible that we have come so far and yet remain in the backwoods when it comes to doing a simple will? For that, we must go back to the turn of the century when Congress first passed the E-Sign Act, short for Electronic Signatures in Global and National Commerce Act, and set the stage for global commerce. Texas, like most other states, responded by passing a version of the Uniform Electronic Transactions Act, known as UETA.
As a result of these laws, a person could enter into a contract electronically. Amazon orders, docubank signatures on real estate contracts and credit card applications are all examples of electronic transactions.
Both the E-Sign Act and UETA encompassed only agreements that were related to business, commercial or governmental affairs. Both laws specifically excluded the creation and execution of wills, codicils, and testamentary trusts.
Here is the reason for the exclusion. Wills, codicils and testamentary trusts are unilateral documents. They are not agreements between two people, and they are not transactions. They’re not related to business, commercial or governmental affairs. They are, quite simply, not the type of documents contemplated within the Acts.
There is a reason for that: electronic wills come with complications. For example, could an unsent text, a Facebook post, or a file named “My Will” on a personal computer be considered an enforceable will? What about an email purporting to revoke a prior will? Digital assets may add many different dimensions.
Since they were not authorized by the E-Sign ACT or the uniform law adopted by most states, in order to be considered valid and enforceable an electronic will, codicil or testamentary trust would have to be authorized by a separate law passed in each state.
Nevada is the only state, so far, that has passed a law authorizing an electronic will, but the technical requirements are so stringent that many experts doubt a compliant will can be created. The Uniform Law Commission Drafting Committee is working on a uniform law to address the formation, validity, and recognition of for electronic wills, end-of-life planning document and powers of attorney, with no result yet to report.
There is a specific Texas statute that authorizes electronic advance directives, so these may be signed by the declarant, witness or notary using a digital or electronic signature: medical power of attorney, directive to physicians and out-of-hospital DNR orders. Learn more about our success in Wills and Trusts.
As for the other estate planning documents, for now the following documents should be written on paper and signed in ink with all of the required formalities: will, codicil, testamentary trust and durable power of attorney.
Virginia Hammerle is an attorney whose practice includes estate planning, litigation and business law. For more articles, see her blog at hammerle.com or sign up for her newsletter at legaltalktexas@hammerle.com
