Texas 2023 - 88th Regular

Texas Senate Bill SB1779 Compare Versions

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1	1	By: Parker S.B. No. 1779
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the adoption of the Uniform Electronic Estate Planning
7	7	Documents Act.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. The Estates Code is amended by adding Title 5 to
10	10	read as follows:
11	11	TITLE 5. ELECTRONIC ESTATE PLANNING
12	12	CHAPTER 2501. UNIFORM ELECTRONIC ESTATE PLANNING DOCUMENTS ACT
13	13	SUBCHAPTER A. GENERAL PROVISIONS
14	14	Sec. 2501.001. SHORT TITLE. This chapter may be cited as
15	15	the Uniform Electronic Estate Planning Documents Act.
16	16	Sec. 2501.002. DEFINITIONS. In this chapter:
17	17	(1) "Electronic" means relating to technology having
18	18	electrical, digital, magnetic, wireless, optical, electromagnetic,
19	19	or similar capabilities.
20	20	(2) "Electronic notarial certificate" has the meaning
21	21	assigned by Section 406.101, Government Code.
22	22	(3) "Electronic presence" means the relationship of
23	23	two or more individuals in different locations communicating in
24	24	real time to the same extent as if the individuals were physically
25	25	present in the same location.
26	26	(4) "Electronic record" means a record created,
27	27	generated, sent, communicated, received, or stored by electronic
28	28	means.
29	29	(5) "Electronic signature" means an electronic symbol
30	30	or process attached to or logically associated with a record and
31	31	executed or adopted by a person with the intent to sign the record.
32	32	(6) "Electronic will" means a will executed in
33	33	compliance with Section 2501.103.
34	34	(7) "Information" includes data, text, images, codes,
35	35	computer programs, software, and databases.
36	36	(8) "Non-testamentary estate planning document" means
37	37	a record relating to estate planning that is readable as text at the
38	38	time of signing and is not a will or contained in a will. The term:
39	39	(A) includes a record readable as text at the
40	40	time of signing that creates, exercises, modifies, releases, or
41	41	revokes:
42	42	(i) a trust instrument;
43	43	(ii) a trust power that under the terms of
44	44	the trust requires a signed record;
45	45	(iii) a certification of a trust under
46	46	Section 114.086, Property Code;
47	47	(iv) a durable power of attorney under
48	48	Subtitle P, Title 2;
49	49	(v) an agent's certification under Section
50	50	751.203 of the validity of a power of attorney and the agent's
51	51	authority;
52	52	(vi) a power of appointment;
53	53	(vii) an advance directive as defined by
54	54	Section 166.002, Health and Safety Code;
55	55	(viii) a record directing disposition of an
56	56	individual's body after death;
57	57	(ix) a designation of a guardian for the
58	58	signing individual;
59	59	(x) a declaration of appointment of a
60	60	guardian for a minor child or adult child with a disability;
61	61	(xi) a mental health treatment declaration;
62	62	(xii) a community property survivorship
63	63	agreement;
64	64	(xiii) a disclaimer under Chapter 240,
65	65	Property Code; and
66	66	(xiv) any other record intended to carry
67	67	out an individual's intent regarding property or health care while
68	68	incapacitated or on death; and
69	69	(B) does not include a deed of real property or a
70	70	certificate of title for a motor vehicle, watercraft, or aircraft.
71	71	(9) "Person" means an individual, estate, business or
72	72	nonprofit entity, government or governmental subdivision, agency
73	73	or instrumentality, or other legal entity.
74	74	(10) "Power of attorney" means a record that grants
75	75	authority to an agent to act in place of the principal, even if the
76	76	term is not used in the record.
77	77	(11) "Record" means information:
78	78	(A) inscribed on a tangible medium; or
79	79	(B) stored in an electronic or other medium and
80	80	retrievable in perceivable form.
81	81	(12) "Security procedure" means a procedure to verify
82	82	that an electronic signature, record, or performance is that of a
83	83	specific person or to detect a change or error in an electronic
84	84	record. The term includes a procedure that uses an algorithm, code,
85	85	identifying word or number, encryption, or callback or other
86	86	acknowledgment procedure.
87	87	(13) "Settlor" means a person, including a testator,
88	88	that creates or contributes property to a trust.
89	89	(14) "Sign" means, with present intent to authenticate
90	90	or adopt a record:
91	91	(A) execute or adopt a tangible symbol; or
92	92	(B) attach to or logically associate with the
93	93	record an electronic signature.
94	94	(15) "State" means a state of the United States, the
95	95	District of Columbia, Puerto Rico, the United States Virgin
96	96	Islands, or other territory or possession subject to the
97	97	jurisdiction of the United States. The term includes a federally
98	98	recognized Indian tribe.
99	99	(16) "Terms of a trust" means:
100	100	(A) except as provided by Paragraph (B), the
101	101	manifestation of the settlor's intent regarding a trust's
102	102	provisions as:
103	103	(i) expressed in the trust instrument; or
104	104	(ii) established by other evidence that
105	105	would be admissible in a judicial proceeding; or
106	106	(B) the trust's provisions as established,
107	107	determined, or amended by:
108	108	(i) a trustee or other person in accordance
109	109	with applicable law;
110	110	(ii) a court order; or
111	111	(iii) a nonjudicial settlement agreement.
112	112	(17) "Trust instrument" means an instrument executed
113	113	by the settlor that contains terms of the trust, including any
114	114	amendments.
115	115	(18) "Will" includes a codicil and a testamentary
116	116	instrument that merely appoints an executor, revokes or revises
117	117	another will, designates a guardian for appointment, or expressly
118	118	excludes or limits the right of an individual or class to succeed to
119	119	property of the decedent passing by intestate succession.
120	120	Sec. 2501.003. CONSTRUCTION. This chapter must be
121	121	construed and applied to:
122	122	(1) facilitate electronic estate planning documents,
123	123	electronic wills, and electronic signatures consistent with other
124	124	law; and
125	125	(2) be consistent with reasonable practices
126	126	concerning electronic documents and signatures and continued
127	127	expansion of those practices.
128	128	SUBCHAPTER B. ELECTRONIC NON-TESTAMENTARY ESTATE PLANNING
129	129	DOCUMENTS
130	130	Sec. 2501.051. SCOPE. (a) Except as provided by Subsection
131	131	(b), this subchapter applies to an electronic non-testamentary
132	132	estate planning document and an electronic signature on a
133	133	non-testamentary estate planning document.
134	134	(b) This subchapter does not apply to a non-testamentary
135	135	estate planning document if the document precludes use of an
136	136	electronic record or electronic signature.
137	137	(c) This subchapter does not affect the validity of an
138	138	electronic record or electronic signature that is valid under:
139	139	(1) Chapter 322, Business & Commerce Code; or
140	140	(2) Subchapter C of this Title or any other state law
141	141	governing creation and execution of an electronic will.
142	142	Sec. 2501.052. PRINCIPLES OF LAW AND EQUITY. The law of
143	143	this state and principles of equity applicable to a
144	144	non-testamentary estate planning document apply to an electronic
145	145	non-testamentary estate planning document except as modified by
146	146	this subchapter.
147	147	Sec. 2501.053. USE OF ELECTRONIC RECORD OR SIGNATURE NOT
148	148	REQUIRED. (a) This subchapter does not require a non-testamentary
149	149	estate planning document or signature on a non-testamentary estate
150	150	planning document to be created, generated, sent, communicated,
151	151	received, stored, or otherwise processed or used by electronic
152	152	means or in electronic form.
153	153	(b) A person is not required to have a non-testamentary
154	154	estate planning document in electronic form or signed
155	155	electronically even if the person previously created or signed a
156	156	non-testamentary estate planning document by electronic means.
157	157	(c) A person may not waive the provisions of this section.
158	158	Sec. 2501.054. RECOGNITION OF ELECTRONIC NON-TESTAMENTARY
159	159	ESTATE PLANNING DOCUMENT AND ELECTRONIC SIGNATURE. (a) A
160	160	non-testamentary estate planning document or a signature on a
161	161	non-testamentary estate planning document may not be denied legal
162	162	effect or enforceability solely because it is in electronic form.
163	163	(b) If other law of this state requires a non-testamentary
164	164	estate planning document to be in writing, an electronic record of
165	165	the document satisfies the requirement.
166	166	(c) If other law of this state requires a signature on a
167	167	non-testamentary estate planning document, an electronic signature
168	168	satisfies the requirement.
169	169	Sec. 2501.055. ATTRIBUTION AND EFFECT OF ELECTRONIC RECORD
170	170	AND ELECTRONIC SIGNATURE. (a) An electronic non-testamentary
171	171	estate planning document or electronic signature on an electronic
172	172	non-testamentary estate planning document is attributable to a
173	173	person if it was the act of the person. The act of the person may be
174	174	shown in any manner, including by showing the efficacy of a security
175	175	procedure applied to determine the person to which the electronic
176	176	record or electronic signature was attributable.
177	177	(b) The effect of attribution to a person under Subsection
178	178	(a) of a document or signature is determined from the context and
179	179	surrounding circumstances at the time of its creation, execution,
180	180	or adoption and as provided by other law.
181	181	Sec. 2501.056. NOTARIZATION AND ACKNOWLEDGMENT. If other
182	182	law of this state requires a signature or record to be notarized,
183	183	acknowledged, verified, or made under oath, the requirement is
184	184	satisfied with respect to an electronic non-testamentary estate
185	185	planning document if an individual authorized to perform the
186	186	notarization, acknowledgment, verification, or oath attaches or
187	187	logically associates the individual's electronic signature on the
188	188	document together with all other information required to be
189	189	included under the other law.
190	190	Sec. 2501.057. WITNESSING AND ATTESTATION. (a) If other
191	191	law of this state bases the validity of a non-testamentary estate
192	192	planning document on whether it is signed, witnessed, or attested
193	193	by another individual, the signature, witnessing, or attestation of
194	194	that individual may be electronic.
195	195	(b) If other law of this state bases the validity of a
196	196	non-testamentary estate planning document on whether it is signed,
197	197	witnessed, or attested by another individual in the presence of the
198	198	individual signing the document, the presence requirement is
199	199	satisfied if the individuals are in each other's electronic
200	200	presence.
201	201	Sec. 2501.058. RETENTION OF ELECTRONIC RECORD; ORIGINAL.
202	202	(a) In this section, "governmental agency" means an executive,
203	203	legislative, or judicial agency, department, board, commission,
204	204	authority, institution, or instrumentality of the federal
205	205	government or of a state or of a county, municipality, or other
206	206	political subdivision of a state.
207	207	(b) Except as provided by Subsection (c), if other law of
208	208	this state requires an electronic non-testamentary estate planning
209	209	document to be retained, transmitted, copied, or filed, the
210	210	requirement is satisfied by retaining, transmitting, copying, or
211	211	filing an electronic record that:
212	212	(1) accurately reflects the information in the
213	213	document after it was first generated in final form as an electronic
214	214	record or under Section 2501.059; and
215	215	(2) remains accessible to the extent required by the
216	216	other law.
217	217	(c) A requirement under Subsection (b) to retain a record
218	218	does not apply to information the sole purpose of which is to enable
219	219	the record to be sent, communicated, or received.
220	220	(d) A person may satisfy Subsection (b) by using the
221	221	services of another person.
222	222	(e) If other law of this state requires a non-testamentary
223	223	estate planning document to be presented or retained in its
224	224	original form, or provides consequences if a non-testamentary
225	225	estate planning document is not presented or retained in its
226	226	original form, an electronic record retained in accordance with
227	227	Subsection (b) satisfies the other law.
228	228	(f) This section does not preclude a governmental agency
229	229	from specifying requirements for the retention of a record subject
230	230	to the agency's jurisdiction in addition to those in this section.
231	231	Sec. 2501.059. CERTIFICATION OF PAPER COPY. An individual
232	232	may create a certified paper copy of an electronic non-testamentary
233	233	estate planning document by affirming under penalty of perjury that
234	234	the paper copy is a complete and accurate copy of the document.
235	235	Sec. 2501.060. ADMISSIBILITY IN EVIDENCE. Evidence
236	236	relating to an electronic non-testamentary estate planning
237	237	document or an electronic signature on the document may not be
238	238	excluded in a proceeding solely because it is in electronic form.
239	239	SUBCHAPTER C. UNIFORM ELECTRONIC WILLS ACT
240	240	Sec. 2501.101. LAW AND PRINCIPLES OF EQUITY. An electronic
241	241	will is a will for all purposes of the law of this state. The law of
242	242	this state and principles of equity applicable to wills apply to an
243	243	electronic will except as modified by this subchapter.
244	244	Sec. 2501.102. WHO MAY MAKE AN ELECTRONIC WILL. An
245	245	individual who may make a will under the law of this state other
246	246	than this chapter may make an electronic will.
247	247	Sec. 2501.103. EXECUTION OF ELECTRONIC WILL. (a) An
248	248	electronic will must be in a record perceivable as text that is:
249	249	(1) signed, with the intent that the record be the
250	250	testator's electronic will, by:
251	251	(A) the testator; or
252	252	(B) another individual in the testator's name, in
253	253	the testator's conscious physical or electronic presence, and at
254	254	the testator's direction; and
255	255	(2) signed by at least two credible individuals who
256	256	are at least 14 years of age, each of whom signed in the physical or
257	257	electronic presence of the testator.
258	258	(b) Intent of a testator that a record be the testator's
259	259	electronic will may be established by extrinsic evidence.
260	260	Sec. 2501.104. ELECTRONIC WILL MADE SELF-PROVING IF ALL
261	261	WITNESSES PHYSICALLY PRESENT. (a) An electronic will with all
262	262	attesting witnesses physically present in the same location as the
263	263	testator may be made self-proving by acknowledgment of the testator
264	264	and affidavits of the witnesses.
265	265	(b) An acknowledgment and the affidavits under Subsection
266	266	(a) must be:
267	267	(1) made before an officer authorized to administer
268	268	oaths under the law of the state in which execution occurs, who is
269	269	physically present in the same location as the testator and
270	270	attesting witnesses; and
271	271	(2) evidenced by the officer's certificate under
272	272	official seal logically associated with the electronic will.
273	273	(c) The acknowledgment and affidavits under Subsection (a)
274	274	must be in substantially the following form:
275	275	Before me, the undersigned authority, on this day personally
276	276	appeared , , and , known to me to be
277	277	the testator and witnesses, respectively, who signed their names to
278	278	this record in their respective capacities, and all of said persons
279	279	being by me duly sworn, the said , testator, declared to
280	280	me and to the said witnesses in my presence that this record is
281	281	[his/her] electronic will, and that [he/she] had willingly made and
282	282	executed it as [his/her] free act and deed; and the said witnesses,
283	283	each on [his/her] oath stated to me, in the physical presence and
284	284	hearing of the said testator, that the said testator had declared to
285	285	them that this record is [his/her] electronic will, and that
286	286	[he/she] executed same as such and wanted each of them to sign it as
287	287	a witness; and upon their oaths each witness stated further that
288	288	they did sign the same as witnesses in the physical presence of the
289	289	said testator and at [his/her] request; that [he/she] was at that
290	290	time eighteen years of age or over (or being under such age, was or
291	291	had been lawfully married, or was then a member of the armed forces
292	292	of the United States, or an auxiliary of the armed forces of the
293	293	United States, or the United States Maritime Service) and was of
294	294	sound mind; and that each of said witnesses was then at least 14
295	295	years of age.
296	296	Testator
297	297	Witness
298	298	Witness
299	299	Subscribed and sworn to before me by the said ,
300	300	testator, and by the said and , witnesses,
301	301	this day of , 20 .
302	302	(SEAL)
303	303	(Signed)
304	304	(Official Capacity of Officer)
305	305	Sec. 2501.105. ELECTRONIC WILL MADE SELF-PROVING WHERE ALL
306	306	WITNESSES NOT PHYSICALLY PRESENT. (a) In this section, "authorized
307	307	person" means an individual licensed to practice law in the United
308	308	States.
309	309	(b) An electronic will without all attesting witnesses
310	310	physically present in the same location as the testator may be made
311	311	self-proving by:
312	312	(1) acknowledgment of the testator and affidavits of
313	313	the witnesses:
314	314	(A) made before an online notary public; and
315	315	(B) evidenced by the online notary public's
316	316	electronic notarial certificate; or
317	317	(2) an authorized person's certification in writing
318	318	under Subsection (e) that:
319	319	(A) the person is an authorized person;
320	320	(B) the testator declared that the record is the
321	321	testator's electronic will and that the testator
322	322	understands the will's contents;
323	323	(C) the testator signed the electronic will in
324	324	the electronic or physical presence of each individual
325	325	who signed the record as a witness;
326	326	(D) the authorized person is satisfied as to the
327	327	identity of the testator and the witnesses;
328	328	(E) to the best of the authorized person's
329	329	knowledge the testator:
330	330	(i) was, at the time of the signing of the
331	331	electronic will, 18 years of age or older or,
332	332	being under such age, was or had been lawfully
333	333	married or was then a member of the armed forces of
334	334	the United States, or an auxiliary of the armed
335	335	forces of the United States, or the United States
336	336	Maritime Service;
337	337	(ii) was of sound mind; and
338	338	(iii) willingly made and executed the
339	339	electronic will as the testator's free act and
340	340	deed; and
341	341	(F) to the best of the authorized person's
342	342	knowledge each of the witnesses was at least 14 years of
343	343	age.
344	344	(c) An heir of the testator or a beneficiary under an
345	345	electronic will may not act as an authorized person under this
346	346	section.
347	347	(d) An authorized person under this section submits to the
348	348	jurisdiction of the court in the county in which the testator
349	349	executes the electronic will.
350	350	(e) A certification made under Subsection (b)(2) must be in
351	351	substantially the following form:
352	352	I, , an authorized person, certify that on
353	353	this day of , 20____, at , (city, state),
354	354	the testator declared the attached record to be the electronic will
355	355	of the testator and declared that the testator understands the
356	356	contents of the electronic will. I further certify that the
357	357	testator, in the electronic or physical presence of each individual
358	358	who signed the electronic will as a witness, signed the electronic
359	359	will. I further certify that I am satisfied as to the identity of
360	360	the testator and the witnesses and that to the best of my knowledge
361	361	the testator was, at the time of the signing of the electronic will,
362	362	eighteen years of age or over or, being under such age, was or had
363	363	been lawfully married or was then a member of the armed forces of
364	364	the United States, or an auxiliary of the armed forces of the United
365	365	States, or the United States Maritime Service, was of sound mind,
366	366	and willingly made and executed the electronic will as the
367	367	testator's free act and deed. I also certify that to the best of my
368	368	knowledge each of the witnesses was at least 14 years of age.
369	369	(Signed)
370	370	Sec. 2501.106. ELECTRONIC WILL MADE SELF-PROVING AFTER
371	371	EXECUTION. (a) An electronic will with all attesting witnesses
372	372	physically present in the same location as the testator may be made
373	373	self-proving at any time after its execution by the acknowledgment
374	374	of the testator and the affidavits of the witnesses.
375	375	(b) An acknowledgment and affidavits under Subsection (a)
376	376	must be:
377	377	(1) made before an officer authorized to administer
378	378	oaths under the law of the state in which the acknowledgment occurs;
379	379	and
380	380	(2) evidenced by the officer's certificate under
381	381	official seal, logically associated with the electronic will, in
382	382	substantially the following form:
383	383	I, , the testator, and we,
384	384	and , witnesses, whose names are
385	385	signed to the attached or preceding electronic will, being sworn,
386	386	declare to the undersigned officer that the testator signed the
387	387	record as the testator's electronic will, the testator willingly
388	388	made and executed it as the testator's free act and deed, each of
389	389	the witnesses, in the physical presence and hearing of the
390	390	testator, signed the electronic will as witnesses to the testator's
391	391	signing, to the best of each witness's knowledge the testator was at
392	392	that time eighteen years of age or over (or being under such age,
393	393	was or had been lawfully married, or was then a member of the armed
394	394	forces of the United States, or an auxiliary of the armed forces of
395	395	the United States, or the United States Maritime Service) and was of
396	396	sound mind, and each of the witnesses was then at least 14 years of
397	397	age.
398	398	Testator
399	399	Witness
400	400	Witness
401	401	State of
402	402	County of
403	403	Subscribed and sworn to before me by the said ,
404	404	testator, and by the said and , witnesses,
405	405	this day of , 20 .
406	406	(SEAL)
407	407	(Signed)
408	408	(Official Capacity of Officer)
409	409	Sec. 2501.107. PROOF OF ELECTRONIC WILL. A signature
410	410	physically or electronically affixed to an affidavit attached to an
411	411	electronic will under this chapter is considered a signature
412	412	affixed to the electronic will if necessary to prove the will's
413	413	execution.
414	414	Sec. 2501.108. CHOICE OF LAW AS TO EXECUTION. A will
415	415	executed electronically but not in compliance with Section 2501.103
416	416	is an electronic will under this subchapter if executed in
417	417	compliance with the law of the jurisdiction where the testator is:
418	418	(1) physically located when the will is signed; or
419	419	(2) domiciled or resides when the will is signed or
420	420	when the testator dies.
421	421	Sec. 2501.109. REVOCATION. (a) An electronic will or part
422	422	of an electronic will is revoked by:
423	423	(1) a subsequent will, including an electronic will,
424	424	that revokes the previous will or part of the previous will
425	425	expressly or by inconsistency; or
426	426	(2) a revocatory act, if it is established by clear and
427	427	convincing evidence that:
428	428	(A) the testator performed the act with the
429	429	intent and for the purpose of revoking the will or part of the will;
430	430	or
431	431	(B) another individual performed the act in the
432	432	testator's physical or electronic presence and by the testator's
433	433	direction.
434	434	(b) An electronic will may revoke a will that is not an
435	435	electronic will.
436	436	Sec. 2501.110. CERTIFICATION OF PAPER COPY. An individual
437	437	may create a certified paper copy of an electronic will by affirming
438	438	under penalty of perjury that a paper copy of the electronic will is
439	439	a complete, true, and accurate copy of the electronic will. If the
440	440	electronic will is made self-proving, the certified paper copy of
441	441	the will must include the self-proving affidavits.
442	442	SUBCHAPTER D. MISCELLANEOUS PROVISIONS
443	443	Sec. 2501.151. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
444	444	In applying and construing this uniform act, a court shall consider
445	445	the promotion of uniformity of the law among states that enact it.
446	446	Sec. 2501.152. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
447	447	AND NATIONAL COMMERCE ACT. This chapter modifies, limits, or
448	448	supersedes the Electronic Signatures in Global and National
449	449	Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify,
450	450	limit, or supersede 15 U.S.C. Section 7001(c) or authorize
451	451	electronic delivery of any of the notices described in 15 U.S.C.
452	452	Section 7003(b).
453	453	SECTION 2. This Act applies to:
454	454	(1) an electronic non-testamentary estate planning document
455	455	created, signed, generated, sent, communicated, received, or
456	456	stored before, on, or after the effective date of this Act.
457	457	(2) the will of a decedent whose death is on or after the
458	458	effective date of this Act.
459	459	SECTION 3. This Act takes effect September 1, 2023.