Bill Text: TX HB3848 | 2019-2020 | 86th Legislature | Introduced
Bill Title: Relating to adoption of the Electronic Wills Act.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2019-04-30 - Committee report sent to Calendars [HB3848 Detail]
Download: Texas-2019-HB3848-Introduced.html
86R6027 MTB-F | ||
By: Longoria | H.B. No. 3848 |
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relating to adoption of the Electronic Wills Act. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subtitle F, Title 2, Estates Code, is amended by | ||
adding Chapter 259 to read as follows: | ||
CHAPTER 259. ELECTRONIC WILLS | ||
Sec. 259.001. SHORT TITLE. This chapter may be cited as | ||
the Electronic Wills Act. | ||
Sec. 259.002. DEFINITIONS. In this chapter: | ||
(1) "Electronic" means relating to technology having | ||
electrical, digital, magnetic, wireless, optical, electromagnetic, | ||
or similar capabilities. | ||
(2) "Electronic notarial certificate" has the meaning | ||
assigned by Section 406.101, Government Code. | ||
(3) "Electronic will" means a will executed in | ||
compliance with Section 259.005. | ||
(4) "Online notary public" has the meaning assigned by | ||
Section 406.101, Government Code. | ||
(5) "Record" means information that is inscribed on a | ||
tangible medium or that is stored in an electronic or other medium | ||
and is retrievable in perceivable form. | ||
(6) "Sign" means, with present intent to authenticate | ||
or adopt a record: | ||
(A) to execute or adopt a tangible symbol; or | ||
(B) to affix to or logically associate with the | ||
record an electronic symbol, sound, or process. | ||
Sec. 259.0025. ELECTRONIC PRESENCE. For purposes of this | ||
chapter, two individuals are in each other's "electronic presence" | ||
if the individuals are in different physical locations but able to | ||
communicate simultaneously by sight and sound, with accommodation | ||
for a testator or witness who has limited ability in sight or | ||
hearing. | ||
Sec. 259.003. COMMON LAW AND PRINCIPLES OF EQUITY. The | ||
common law and principles of equity supplement this chapter except | ||
to the extent modified by this chapter or state law other than this | ||
chapter. | ||
Sec. 259.004. WHO MAY MAKE AN ELECTRONIC WILL. An | ||
individual who may make a will under the law of this state other | ||
than this chapter may make an electronic will. | ||
Sec. 259.005. EXECUTION OF ELECTRONIC WILL. (a) An | ||
electronic will must be in a record perceivable as text that is: | ||
(1) signed, with the intent that the record be the | ||
testator's electronic will, by: | ||
(A) the testator; or | ||
(B) another individual in the testator's name, in | ||
the testator's conscious physical or electronic presence, and at | ||
the testator's direction; and | ||
(2) signed by at least two credible individuals who | ||
are at least 14 years of age, each of whom signed in the physical or | ||
electronic presence of the testator. | ||
(b) Intent of a testator that a record be the testator's | ||
electronic will may be established by extrinsic evidence. | ||
Sec. 259.006. ELECTRONIC WILL MADE SELF-PROVING IF ALL | ||
WITNESSES PHYSICALLY PRESENT. (a) An electronic will with all | ||
attesting witnesses physically present in the same location as the | ||
testator may be made self-proving by acknowledgment of the testator | ||
and affidavits of the witnesses. | ||
(b) An acknowledgment and the affidavits under Subsection | ||
(a) must be: | ||
(1) made before an officer authorized to administer | ||
oaths under law of the state in which execution occurs, who is | ||
physically present in the same location as the testator and | ||
attesting witnesses; and | ||
(2) evidenced by the officer's certificate under | ||
official seal logically associated with the electronic will. | ||
(c) The acknowledgment and affidavits under Subsection (a) | ||
must be in substantially the following form: | ||
Before me, the undersigned authority, on this day personally | ||
appeared _____________, _____________, and _____________, known to | ||
me to be the testator and witnesses, respectively, who signed their | ||
names to this record in their respective capacities, and all of said | ||
persons being by me duly sworn, the said _____________, testator, | ||
declared to me and to the said witnesses in my presence that this | ||
record is [his/her] electronic will, and that [he/she] had | ||
willingly made and executed it as [his/her] free act and deed; and | ||
the said witnesses, each on [his/her] oath stated to me, in the | ||
physical presence and hearing of the said testator, that the said | ||
testator had declared to them that this record is [his/her] | ||
electronic will, and that [he/she] executed same as such and wanted | ||
each of them to sign it as a witness; and upon their oaths each | ||
witness stated further that they did sign the same as witnesses in | ||
the presence of the said testator and at [his/her] request; that | ||
[he/she] was at that time eighteen years of age or over (or being | ||
under such age, was or had been lawfully married, or was then a | ||
member of the armed forces of the United States, or an auxiliary of | ||
the armed forces of the United States, or the United States Maritime | ||
Service) and was of sound mind; and that each of said witnesses was | ||
then at least fourteen years of age. | ||
___________________________ | ||
Testator | ||
___________________________ | ||
Witness | ||
___________________________ | ||
Witness | ||
Subscribed and sworn to before me by the said _________, | ||
testator, and by the said _____________ and ______________, | ||
witnesses, this _____ day of __________, 20___. | ||
(SEAL) | ||
(Signed) ___________________ | ||
(Official Capacity of Officer) | ||
Sec. 259.007. ELECTRONIC WILL MADE SELF-PROVING WHERE ALL | ||
WITNESSES NOT PHYSICALLY PRESENT. (a) In this section, | ||
"authorized person" means: | ||
(1) an individual licensed to practice law in the | ||
United States; or | ||
(2) a court clerk. | ||
(b) An electronic will without all attesting witnesses | ||
physically present in the same location as the testator may be made | ||
self-proving by: | ||
(1) acknowledgment of the testator and affidavits of | ||
the witnesses: | ||
(A) made before an online notary public; and | ||
(B) evidenced by the online notary public's | ||
electronic notarial certificate; or | ||
(2) an authorized person's certification in writing | ||
under Subsection (e) that: | ||
(A) the person is an authorized person; | ||
(B) the testator declared that the record is the | ||
testator's electronic will and that the testator understands the | ||
will's contents; | ||
(C) the testator signed the electronic will in | ||
the electronic or physical presence of each individual who signed | ||
the record as a witness; | ||
(D) the authorized person is satisfied as to the | ||
identity of the testator and the witnesses; and | ||
(E) to the best of the authorized person's | ||
knowledge the testator: | ||
(i) was, at the time of the signing of the | ||
electronic will, 18 years of age or older or, being under such age, | ||
was or had been lawfully married or was then a member of the armed | ||
forces of the United States, or an auxiliary of the armed forces of | ||
the United States, or the United States Maritime Service; | ||
(ii) was of sound mind; and | ||
(iii) willingly made and executed the | ||
electronic will as the testator's free act and deed. | ||
(c) An heir of the testator or a beneficiary under an | ||
electronic will may not act as an authorized person under this | ||
section. | ||
(d) An authorized person under this section submits to the | ||
jurisdiction of the court in the county in which the testator | ||
executes the electronic will. | ||
(e) A certification made under Subsection (b)(2) must be in | ||
substantially the following form: | ||
I, ______________________, an authorized person, certify | ||
that on this ______ day of __________, 20____, at ______________, | ||
______________(city, state), the testator declared the attached | ||
record to be the electronic will of the testator and declared that | ||
the testator understands the contents of the electronic will. I | ||
further certify that the testator, in the electronic or physical | ||
presence of each individual who signed the electronic will as a | ||
witness, signed the electronic will. I further certify that I am | ||
satisfied as to the identity of the testator and the witnesses and | ||
that to the best of my knowledge the testator was, at the time of the | ||
signing of the electronic will, eighteen years of age or over or, | ||
being under such age, was or had been lawfully married or was then a | ||
member of the armed forces of the United States, or an auxiliary of | ||
the armed forces of the United States, or the United States Maritime | ||
Service, was of sound mind, and willingly made and executed the | ||
electronic will as the testator's free act and deed. | ||
___________________________ | ||
(Signed) | ||
Sec. 259.008. ELECTRONIC WILL MADE SELF-PROVING AFTER | ||
EXECUTION. (a) An electronic will with all attesting witnesses | ||
physically present in the same location as the testator may be made | ||
self-proving at any time after its execution by the acknowledgment | ||
of the testator and the affidavits of the witnesses. | ||
(b) An acknowledgment and affidavits under Subsection (a) | ||
must be: | ||
(1) made before an officer authorized to administer | ||
oaths under the law of the state in which the acknowledgment occurs; | ||
and | ||
(2) evidenced by the officer's certificate under | ||
official seal, logically associated with the electronic will, in | ||
substantially the following form: | ||
I, ______________________, the testator, and we, | ||
______________________ and ______________________, witnesses, | ||
whose names are signed to the attached or preceding electronic | ||
will, being sworn, declare to the undersigned officer that the | ||
testator signed the record as the testator's electronic will, the | ||
testator willingly made and executed it as the testator's free act | ||
and deed, each of the witnesses, in the physical presence and | ||
hearing of the testator, signed the electronic will as witnesses to | ||
the testator's signing, to the best of each witness's knowledge the | ||
testator was at that time eighteen years of age or over (or being | ||
under such age, was or had been lawfully married, or was then a | ||
member of the armed forces of the United States, or an auxiliary of | ||
the armed forces of the United States, or the United States Maritime | ||
Service) and was of sound mind, and each of the witnesses was then | ||
at least fourteen years of age. | ||
___________________________ | ||
Testator | ||
___________________________ | ||
Witness | ||
___________________________ | ||
Witness | ||
State of __________________ | ||
County of _________________ | ||
Subscribed and sworn to before me by the said _________, | ||
testator, and by the said _____________ and ______________, | ||
witnesses, this _____ day of __________, 20____. | ||
(SEAL) | ||
(Signed) __________________ | ||
(Official Capacity of Officer) | ||
Sec. 259.009. PROOF OF ELECTRONIC WILL. A signature | ||
physically or electronically affixed to an affidavit attached to an | ||
electronic will under this chapter is considered a signature | ||
affixed to the electronic will if necessary to prove the will's | ||
execution. | ||
Sec. 259.010. CHOICE OF LAW AS TO EXECUTION. An electronic | ||
will is validly executed if executed in compliance with the law of | ||
the place where: | ||
(1) the testator is physically located at the time of | ||
execution; or | ||
(2) at the time of execution or at the time of death, | ||
the testator is domiciled, resides, or is a citizen. | ||
Sec. 259.011. REVOCATION. (a) An electronic will or part | ||
of an electronic will is revoked by: | ||
(1) a subsequent will, including an electronic will, | ||
that revokes the previous will or part of the previous will | ||
expressly or by inconsistency; or | ||
(2) a revocatory act, if it is established by clear and | ||
convincing evidence that: | ||
(A) the testator performed the act with the | ||
intent and for the purpose of revoking the will or part of the will; | ||
or | ||
(B) another individual performed the act in the | ||
testator's physical or electronic presence and by the testator's | ||
direction. | ||
(b) An electronic will may revoke a will that is not an | ||
electronic will. | ||
Sec. 259.012. UNIFORMITY OF APPLICATION AND CONSTRUCTION. | ||
In applying and construing this chapter, consideration must be | ||
given to the need to promote uniformity of the law with respect to | ||
its subject matter among states that enact it. | ||
Sec. 259.013. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL | ||
AND NATIONAL COMMERCE ACT. This chapter modifies, limits, or | ||
supersedes the Electronic Signatures in Global and National | ||
Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify, | ||
limit, or supersede Section 101(c) of that Act (15 U.S.C. Section | ||
7001(c)) or authorize electronic delivery of any of the notices | ||
described in Section 103(b) of that Act (15 U.S.C. Section | ||
7003(b)). | ||
SECTION 2. This Act applies to the will of a decedent whose | ||
death is on or after the effective date of this Act. | ||
SECTION 3. This Act takes effect September 1, 2019. |