With a stay-at-home order in place, there may be more time to get items checked off the to-do list, such as reorganizing your kitchen. Again. You might also consider addressing your estate plan, but wonder whether it can be completed at this time with social distancing requirements. The good news is that you can.
In Texas, a will must be witnessed by two people who are in the presence of the testator (the person making the will), and who are not beneficiaries under the will. Typically, once a will is witnessed, it is also made “self-proved,” by having the signatures notarized. A self-proved will eliminates the requirement that witnesses testify at the probate hearing after the person dies, so they are highly favored over wills that are not self-proved.
Governor Abbott recently issued an order allowing for wills, powers of attorney, and certain other documents to be notarized remotely, but unfortunately, the order did not eliminate the witness requirement.
Despite this roadblock, there are options.
- Get your plan drafted now.
During this time, many attorneys have shifted to providing all services leading up to the signing ceremony through video or teleconference. Utilizing these resources, you can get the process started now.
- Hold a “socially distant” signing ceremony.
The first priority is safety, but depending on your situation, you may also be able to have your will witnessed and self-proved at this time, if you have an attorney and two witnesses who are willing to participate in a signing on your behalf. Such signings can take place with everyone bringing their own pens, using masks and gloves, and respecting the required 6 feet of distancing.
- Witness now, self-prove later.
If you have a will drafted and two witnesses, you can sign your will and have it witnessed now, but make it self-proved later. To do so, the testator and two witnesses will have to reconvene in front of a notary at a later date.
- Write a will entirely in your own handwriting.
When a will is written wholly in the handwriting of the testator, witnesses are not required. This is known as a “holographic” will and should be used only as a temporary measure until you can get a more comprehensive, printed will prepared by an attorney. If taking this approach, use caution if you have anything other than a traditional estate, such as a first marriage, joint children, a house, cars, and a few accounts. If you have children from a previous marriage or relationships, a business, or other valuable or unusual assets, the process can become more complicated.
Also be aware that your will does not dispose of property that passes through beneficiary designations, such as IRAs or life insurance. Likewise, a will does not address assets governed by a transfer on death arrangement or anything owned with someone else as joint tenants with rights of survivorship. Those assets automatically pass to the other joint tenant.
The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal questions, should consult attorneys for advice on their particular circumstances. Attorney Jennifer Solak provides legal advice for families and businesses and may be contacted at firstname.lastname@example.org.