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
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  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.
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