Texas 2019 - 86th Regular

Texas House Bill HB3848 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R6027 MTB-F
2	2	By: Longoria H.B. No. 3848
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to adoption of the Electronic Wills Act.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subtitle F, Title 2, Estates Code, is amended by
10	10	adding Chapter 259 to read as follows:
11	11	CHAPTER 259. ELECTRONIC WILLS
12	12	Sec. 259.001. SHORT TITLE. This chapter may be cited as
13	13	the Electronic Wills Act.
14	14	Sec. 259.002. DEFINITIONS. In this chapter:
15	15	(1) "Electronic" means relating to technology having
16	16	electrical, digital, magnetic, wireless, optical, electromagnetic,
17	17	or similar capabilities.
18	18	(2) "Electronic notarial certificate" has the meaning
19	19	assigned by Section 406.101, Government Code.
20	20	(3) "Electronic will" means a will executed in
21	21	compliance with Section 259.005.
22	22	(4) "Online notary public" has the meaning assigned by
23	23	Section 406.101, Government Code.
24	24	(5) "Record" means information that is inscribed on a
25	25	tangible medium or that is stored in an electronic or other medium
26	26	and is retrievable in perceivable form.
27	27	(6) "Sign" means, with present intent to authenticate
28	28	or adopt a record:
29	29	(A) to execute or adopt a tangible symbol; or
30	30	(B) to affix to or logically associate with the
31	31	record an electronic symbol, sound, or process.
32	32	Sec. 259.0025. ELECTRONIC PRESENCE. For purposes of this
33	33	chapter, two individuals are in each other's "electronic presence"
34	34	if the individuals are in different physical locations but able to
35	35	communicate simultaneously by sight and sound, with accommodation
36	36	for a testator or witness who has limited ability in sight or
37	37	hearing.
38	38	Sec. 259.003. COMMON LAW AND PRINCIPLES OF EQUITY. The
39	39	common law and principles of equity supplement this chapter except
40	40	to the extent modified by this chapter or state law other than this
41	41	chapter.
42	42	Sec. 259.004. WHO MAY MAKE AN ELECTRONIC WILL. An
43	43	individual who may make a will under the law of this state other
44	44	than this chapter may make an electronic will.
45	45	Sec. 259.005. EXECUTION OF ELECTRONIC WILL. (a) An
46	46	electronic will must be in a record perceivable as text that is:
47	47	(1) signed, with the intent that the record be the
48	48	testator's electronic will, by:
49	49	(A) the testator; or
50	50	(B) another individual in the testator's name, in
51	51	the testator's conscious physical or electronic presence, and at
52	52	the testator's direction; and
53	53	(2) signed by at least two credible individuals who
54	54	are at least 14 years of age, each of whom signed in the physical or
55	55	electronic presence of the testator.
56	56	(b) Intent of a testator that a record be the testator's
57	57	electronic will may be established by extrinsic evidence.
58	58	Sec. 259.006. ELECTRONIC WILL MADE SELF-PROVING IF ALL
59	59	WITNESSES PHYSICALLY PRESENT. (a) An electronic will with all
60	60	attesting witnesses physically present in the same location as the
61	61	testator may be made self-proving by acknowledgment of the testator
62	62	and affidavits of the witnesses.
63	63	(b) An acknowledgment and the affidavits under Subsection
64	64	(a) must be:
65	65	(1) made before an officer authorized to administer
66	66	oaths under law of the state in which execution occurs, who is
67	67	physically present in the same location as the testator and
68	68	attesting witnesses; and
69	69	(2) evidenced by the officer's certificate under
70	70	official seal logically associated with the electronic will.
71	71	(c) The acknowledgment and affidavits under Subsection (a)
72	72	must be in substantially the following form:
73	73	Before me, the undersigned authority, on this day personally
74	74	appeared _____________, _____________, and _____________, known to
75	75	me to be the testator and witnesses, respectively, who signed their
76	76	names to this record in their respective capacities, and all of said
77	77	persons being by me duly sworn, the said _____________, testator,
78	78	declared to me and to the said witnesses in my presence that this
79	79	record is [his/her] electronic will, and that [he/she] had
80	80	willingly made and executed it as [his/her] free act and deed; and
81	81	the said witnesses, each on [his/her] oath stated to me, in the
82	82	physical presence and hearing of the said testator, that the said
83	83	testator had declared to them that this record is [his/her]
84	84	electronic will, and that [he/she] executed same as such and wanted
85	85	each of them to sign it as a witness; and upon their oaths each
86	86	witness stated further that they did sign the same as witnesses in
87	87	the presence of the said testator and at [his/her] request; that
88	88	[he/she] was at that time eighteen years of age or over (or being
89	89	under such age, was or had been lawfully married, or was then a
90	90	member of the armed forces of the United States, or an auxiliary of
91	91	the armed forces of the United States, or the United States Maritime
92	92	Service) and was of sound mind; and that each of said witnesses was
93	93	then at least fourteen years of age.
94	94	___________________________
95	95	Testator
96	96	___________________________
97	97	Witness
98	98	___________________________
99	99	Witness
100	100	Subscribed and sworn to before me by the said _________,
101	101	testator, and by the said _____________ and ______________,
102	102	witnesses, this _____ day of __________, 20___.
103	103	(SEAL)
104	104	(Signed) ___________________
105	105	(Official Capacity of Officer)
106	106	Sec. 259.007. ELECTRONIC WILL MADE SELF-PROVING WHERE ALL
107	107	WITNESSES NOT PHYSICALLY PRESENT. (a) In this section,
108	108	"authorized person" means:
109	109	(1) an individual licensed to practice law in the
110	110	United States; or
111	111	(2) a court clerk.
112	112	(b) An electronic will without all attesting witnesses
113	113	physically present in the same location as the testator may be made
114	114	self-proving by:
115	115	(1) acknowledgment of the testator and affidavits of
116	116	the witnesses:
117	117	(A) made before an online notary public; and
118	118	(B) evidenced by the online notary public's
119	119	electronic notarial certificate; or
120	120	(2) an authorized person's certification in writing
121	121	under Subsection (e) that:
122	122	(A) the person is an authorized person;
123	123	(B) the testator declared that the record is the
124	124	testator's electronic will and that the testator understands the
125	125	will's contents;
126	126	(C) the testator signed the electronic will in
127	127	the electronic or physical presence of each individual who signed
128	128	the record as a witness;
129	129	(D) the authorized person is satisfied as to the
130	130	identity of the testator and the witnesses; and
131	131	(E) to the best of the authorized person's
132	132	knowledge the testator:
133	133	(i) was, at the time of the signing of the
134	134	electronic will, 18 years of age or older or, being under such age,
135	135	was or had been lawfully married or was then a member of the armed
136	136	forces of the United States, or an auxiliary of the armed forces of
137	137	the United States, or the United States Maritime Service;
138	138	(ii) was of sound mind; and
139	139	(iii) willingly made and executed the
140	140	electronic will as the testator's free act and deed.
141	141	(c) An heir of the testator or a beneficiary under an
142	142	electronic will may not act as an authorized person under this
143	143	section.
144	144	(d) An authorized person under this section submits to the
145	145	jurisdiction of the court in the county in which the testator
146	146	executes the electronic will.
147	147	(e) A certification made under Subsection (b)(2) must be in
148	148	substantially the following form:
149	149	I, ______________________, an authorized person, certify
150	150	that on this ______ day of __________, 20____, at ______________,
151	151	______________(city, state), the testator declared the attached
152	152	record to be the electronic will of the testator and declared that
153	153	the testator understands the contents of the electronic will. I
154	154	further certify that the testator, in the electronic or physical
155	155	presence of each individual who signed the electronic will as a
156	156	witness, signed the electronic will. I further certify that I am
157	157	satisfied as to the identity of the testator and the witnesses and
158	158	that to the best of my knowledge the testator was, at the time of the
159	159	signing of the electronic will, eighteen years of age or over or,
160	160	being under such age, was or had been lawfully married or was then a
161	161	member of the armed forces of the United States, or an auxiliary of
162	162	the armed forces of the United States, or the United States Maritime
163	163	Service, was of sound mind, and willingly made and executed the
164	164	electronic will as the testator's free act and deed.
165	165	___________________________
166	166	(Signed)
167	167	Sec. 259.008. ELECTRONIC WILL MADE SELF-PROVING AFTER
168	168	EXECUTION. (a) An electronic will with all attesting witnesses
169	169	physically present in the same location as the testator may be made
170	170	self-proving at any time after its execution by the acknowledgment
171	171	of the testator and the affidavits of the witnesses.
172	172	(b) An acknowledgment and affidavits under Subsection (a)
173	173	must be:
174	174	(1) made before an officer authorized to administer
175	175	oaths under the law of the state in which the acknowledgment occurs;
176	176	and
177	177	(2) evidenced by the officer's certificate under
178	178	official seal, logically associated with the electronic will, in
179	179	substantially the following form:
180	180	I, ______________________, the testator, and we,
181	181	______________________ and ______________________, witnesses,
182	182	whose names are signed to the attached or preceding electronic
183	183	will, being sworn, declare to the undersigned officer that the
184	184	testator signed the record as the testator's electronic will, the
185	185	testator willingly made and executed it as the testator's free act
186	186	and deed, each of the witnesses, in the physical presence and
187	187	hearing of the testator, signed the electronic will as witnesses to
188	188	the testator's signing, to the best of each witness's knowledge the
189	189	testator was at that time eighteen years of age or over (or being
190	190	under such age, was or had been lawfully married, or was then a
191	191	member of the armed forces of the United States, or an auxiliary of
192	192	the armed forces of the United States, or the United States Maritime
193	193	Service) and was of sound mind, and each of the witnesses was then
194	194	at least fourteen years of age.
195	195	___________________________
196	196	Testator
197	197	___________________________
198	198	Witness
199	199	___________________________
200	200	Witness
201	201	State of __________________
202	202	County of _________________
203	203	Subscribed and sworn to before me by the said _________,
204	204	testator, and by the said _____________ and ______________,
205	205	witnesses, this _____ day of __________, 20____.
206	206	(SEAL)
207	207	(Signed) __________________
208	208	(Official Capacity of Officer)
209	209	Sec. 259.009. PROOF OF ELECTRONIC WILL. A signature
210	210	physically or electronically affixed to an affidavit attached to an
211	211	electronic will under this chapter is considered a signature
212	212	affixed to the electronic will if necessary to prove the will's
213	213	execution.
214	214	Sec. 259.010. CHOICE OF LAW AS TO EXECUTION. An electronic
215	215	will is validly executed if executed in compliance with the law of
216	216	the place where:
217	217	(1) the testator is physically located at the time of
218	218	execution; or
219	219	(2) at the time of execution or at the time of death,
220	220	the testator is domiciled, resides, or is a citizen.
221	221	Sec. 259.011. REVOCATION. (a) An electronic will or part
222	222	of an electronic will is revoked by:
223	223	(1) a subsequent will, including an electronic will,
224	224	that revokes the previous will or part of the previous will
225	225	expressly or by inconsistency; or
226	226	(2) a revocatory act, if it is established by clear and
227	227	convincing evidence that:
228	228	(A) the testator performed the act with the
229	229	intent and for the purpose of revoking the will or part of the will;
230	230	or
231	231	(B) another individual performed the act in the
232	232	testator's physical or electronic presence and by the testator's
233	233	direction.
234	234	(b) An electronic will may revoke a will that is not an
235	235	electronic will.
236	236	Sec. 259.012. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
237	237	In applying and construing this chapter, consideration must be
238	238	given to the need to promote uniformity of the law with respect to
239	239	its subject matter among states that enact it.
240	240	Sec. 259.013. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
241	241	AND NATIONAL COMMERCE ACT. This chapter modifies, limits, or
242	242	supersedes the Electronic Signatures in Global and National
243	243	Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify,
244	244	limit, or supersede Section 101(c) of that Act (15 U.S.C. Section
245	245	7001(c)) or authorize electronic delivery of any of the notices
246	246	described in Section 103(b) of that Act (15 U.S.C. Section
247	247	7003(b)).
248	248	SECTION 2. This Act applies to the will of a decedent whose
249	249	death is on or after the effective date of this Act.
250	250	SECTION 3. This Act takes effect September 1, 2019.