How to Sign Estate Planning Documents in a Pandemic

UPDATE: On April 8, 2020, Governor Abbott issued an order temporarily allowing regular notaries to notarize the following documents by video conference: durable powers of attorney, medical powers of attorney, directives to physicians, and self-proving affidavits for Wills. Please note, however, that the order does NOT eliminate the requirements for witnesses to be physically present. The order will remain in effect until the governor terminates it, or until the March 13, 2020 disaster declaration is lifted or expires. You can read the Governor’s press release by clicking on the following link: Governor Abbott’s Order.

If you’re like most Americans, you’ve probably procrastinated on getting your affairs in order. According to a recent study, only a third of American adults have basic estate planning documents in place.

Procrastination is easy for unpleasant tasks. And there are few tasks that seem more unpleasant than estate planning. The process forces us to confront our mortality and consider heartbreaking subjects like who will raise our children if tragedy strikes.

But the COVID-19 pandemic has highlighted the urgency of having Wills, Trusts, and Powers of Attorney in place for all Americans, young and old. And although it’s possible to work remotely with an attorney to get these documents prepared, social distancing and stay-at-home orders are preventing Texans from getting these important documents signed in a manner that complies with statutory requirements.

So what is the best way to proceed during these unprecedented times?

Consider a Holographic Will

To be valid, a typewritten will in Texas must be signed by the person making the Will, and signed by two witnesses in your presence.

If you are one of millions of Americans practicing social distancing to curb the spread of the COVID-19 virus, and you don’t want to risk being around other people at this time, you may want to consider a holographic Will.

A holographic Will is a Will wholly in the handwriting of the testator and signed by him or her. In an emergency situation, a holographic Will can be a great stop-gap measure for simple estates until more formal documents can be prepared and executed with the requisite formalities.

Consider a Revocable Trust with a Holographic Pourover Will

A revocable trust is a written document that directs how your property will be managed during your life, and how it will be disposed of at the time of your death. Revocable trusts work in conjunction with a pourover Will. A pourover Will acts as a safety net, catching any asset inadvertently left out of your trust and transferring it into the trust upon your death.

While most Revocable Trust agreements are notarized, notarization is not strictly a requirement of a valid Revocable Trust in Texas. Therefore, if you require more complex planning, it would be possible for an
attorney to prepare a revocable trust agreement, and then provide clear guidance on handwriting a very short Pour Over Will leaving all assets to the attorney-prepared trust.

This would allow a you to create a dispositive plan without the need for any other person to be present until more formal planning can take place.

Take Extraordinary Measures if Formally Executing Documents

Not everyone who contracts COVID-19 exhibits any symptoms, but asymptomatic individuals can still transmit the virus. In other words, just because potential witnesses or a notary appear well doesn’t mean they are. Therefore, it is important that you take all necessary precautions to avoid infection.

If you decide to formally execute your documents in front witnesses and a notary, consider setting up a table outside with your documents, and requesting that everyone approach the table in turn with their
own pens to sign as witnesses. If you are one of the lucky Americans who have been able to purchase hand sanitizer, perhaps have the witnesses sanitize before touching the paperwork for extra precaution.

A medical power of attorney is valid if it is signed in front of a notary or in front of two witnesses; however, financial powers of attorney must be signed in front of a notary to be valid.

Note that there is Texas statute that spells out who can make medical decisions on your behalf if you if you do not have a medical power of attorney, which you can read by clicking on the link.

Signing estate planning documents during a pandemic can be a challenge. Your estate planning attorney can help you navigate your choices to ensure the documents you execute will be valid if or when they are needed.

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