By: Parker S.B. No. 1779
A BILL TO BE ENTITLED
AN ACT
relating to the adoption of the Uniform Electronic Estate Planning
Documents Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Estates Code is amended by adding Title 5 to
read as follows:
TITLE 5. ELECTRONIC ESTATE PLANNING
CHAPTER 2501. UNIFORM ELECTRONIC ESTATE PLANNING DOCUMENTS ACT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2501.001. SHORT TITLE. This chapter may be cited as
the Uniform Electronic Estate Planning Documents Act.
Sec. 2501.002. 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 presence" means the relationship of
two or more individuals in different locations communicating in
real time to the same extent as if the individuals were physically
present in the same location.
(4) "Electronic record" means a record created,
generated, sent, communicated, received, or stored by electronic
means.
(5) "Electronic signature" means an electronic symbol
or process attached to or logically associated with a record and
executed or adopted by a person with the intent to sign the record.
(6) "Electronic will" means a will executed in
compliance with Section 2501.103.
(7) "Information" includes data, text, images, codes,
computer programs, software, and databases.
(8) "Non-testamentary estate planning document" means
a record relating to estate planning that is readable as text at the
time of signing and is not a will or contained in a will. The term:
(A) includes a record readable as text at the
time of signing that creates, exercises, modifies, releases, or
revokes:
(i) a trust instrument;
(ii) a trust power that under the terms of
the trust requires a signed record;
(iii) a certification of a trust under
Section 114.086, Property Code;
(iv) a durable power of attorney under
Subtitle P, Title 2;
(v) an agent's certification under Section
751.203 of the validity of a power of attorney and the agent's
authority;
(vi) a power of appointment;
(vii) an advance directive as defined by
Section 166.002, Health and Safety Code;
(viii) a record directing disposition of an
individual's body after death;
(ix) a designation of a guardian for the
signing individual;
(x) a declaration of appointment of a
guardian for a minor child or adult child with a disability;
(xi) a mental health treatment declaration;
(xii) a community property survivorship
agreement;
(xiii) a disclaimer under Chapter 240,
Property Code; and
(xiv) any other record intended to carry
out an individual's intent regarding property or health care while
incapacitated or on death; and
(B) does not include a deed of real property or a
certificate of title for a motor vehicle, watercraft, or aircraft.
(9) "Person" means an individual, estate, business or
nonprofit entity, government or governmental subdivision, agency
or instrumentality, or other legal entity.
(10) "Power of attorney" means a record that grants
authority to an agent to act in place of the principal, even if the
term is not used in the record.
(11) "Record" means information:
(A) inscribed on a tangible medium; or
(B) stored in an electronic or other medium and
retrievable in perceivable form.
(12) "Security procedure" means a procedure to verify
that an electronic signature, record, or performance is that of a
specific person or to detect a change or error in an electronic
record. The term includes a procedure that uses an algorithm, code,
identifying word or number, encryption, or callback or other
acknowledgment procedure.
(13) "Settlor" means a person, including a testator,
that creates or contributes property to a trust.
(14) "Sign" means, with present intent to authenticate
or adopt a record:
(A) execute or adopt a tangible symbol; or
(B) attach to or logically associate with the
record an electronic signature.
(15) "State" means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands, or other territory or possession subject to the
jurisdiction of the United States. The term includes a federally
recognized Indian tribe.
(16) "Terms of a trust" means:
(A) except as provided by Paragraph (B), the
manifestation of the settlor's intent regarding a trust's
provisions as:
(i) expressed in the trust instrument; or
(ii) established by other evidence that
would be admissible in a judicial proceeding; or
(B) the trust's provisions as established,
determined, or amended by:
(i) a trustee or other person in accordance
with applicable law;
(ii) a court order; or
(iii) a nonjudicial settlement agreement.
(17) "Trust instrument" means an instrument executed
by the settlor that contains terms of the trust, including any
amendments.
(18) "Will" includes a codicil and a testamentary
instrument that merely appoints an executor, revokes or revises
another will, designates a guardian for appointment, or expressly
excludes or limits the right of an individual or class to succeed to
property of the decedent passing by intestate succession.
Sec. 2501.003. CONSTRUCTION. This chapter must be
construed and applied to:
(1) facilitate electronic estate planning documents,
electronic wills, and electronic signatures consistent with other
law; and
(2) be consistent with reasonable practices
concerning electronic documents and signatures and continued
expansion of those practices.
SUBCHAPTER B. ELECTRONIC NON-TESTAMENTARY ESTATE PLANNING
DOCUMENTS
Sec. 2501.051. SCOPE. (a) Except as provided by Subsection
(b), this subchapter applies to an electronic non-testamentary
estate planning document and an electronic signature on a
non-testamentary estate planning document.
(b) This subchapter does not apply to a non-testamentary
estate planning document if the document precludes use of an
electronic record or electronic signature.
(c) This subchapter does not affect the validity of an
electronic record or electronic signature that is valid under:
(1) Chapter 322, Business & Commerce Code; or
(2) Subchapter C of this Title or any other state law
governing creation and execution of an electronic will.
Sec. 2501.052. PRINCIPLES OF LAW AND EQUITY. The law of
this state and principles of equity applicable to a
non-testamentary estate planning document apply to an electronic
non-testamentary estate planning document except as modified by
this subchapter.
Sec. 2501.053. USE OF ELECTRONIC RECORD OR SIGNATURE NOT
REQUIRED. (a) This subchapter does not require a non-testamentary
estate planning document or signature on a non-testamentary estate
planning document to be created, generated, sent, communicated,
received, stored, or otherwise processed or used by electronic
means or in electronic form.
(b) A person is not required to have a non-testamentary
estate planning document in electronic form or signed
electronically even if the person previously created or signed a
non-testamentary estate planning document by electronic means.
(c) A person may not waive the provisions of this section.
Sec. 2501.054. RECOGNITION OF ELECTRONIC NON-TESTAMENTARY
ESTATE PLANNING DOCUMENT AND ELECTRONIC SIGNATURE. (a) A
non-testamentary estate planning document or a signature on a
non-testamentary estate planning document may not be denied legal
effect or enforceability solely because it is in electronic form.
(b) If other law of this state requires a non-testamentary
estate planning document to be in writing, an electronic record of
the document satisfies the requirement.
(c) If other law of this state requires a signature on a
non-testamentary estate planning document, an electronic signature
satisfies the requirement.
Sec. 2501.055. ATTRIBUTION AND EFFECT OF ELECTRONIC RECORD
AND ELECTRONIC SIGNATURE. (a) An electronic non-testamentary
estate planning document or electronic signature on an electronic
non-testamentary estate planning document is attributable to a
person if it was the act of the person. The act of the person may be
shown in any manner, including by showing the efficacy of a security
procedure applied to determine the person to which the electronic
record or electronic signature was attributable.
(b) The effect of attribution to a person under Subsection
(a) of a document or signature is determined from the context and
surrounding circumstances at the time of its creation, execution,
or adoption and as provided by other law.
Sec. 2501.056. NOTARIZATION AND ACKNOWLEDGMENT. If other
law of this state requires a signature or record to be notarized,
acknowledged, verified, or made under oath, the requirement is
satisfied with respect to an electronic non-testamentary estate
planning document if an individual authorized to perform the
notarization, acknowledgment, verification, or oath attaches or
logically associates the individual's electronic signature on the
document together with all other information required to be
included under the other law.
Sec. 2501.057. WITNESSING AND ATTESTATION. (a) If other
law of this state bases the validity of a non-testamentary estate
planning document on whether it is signed, witnessed, or attested
by another individual, the signature, witnessing, or attestation of
that individual may be electronic.
(b) If other law of this state bases the validity of a
non-testamentary estate planning document on whether it is signed,
witnessed, or attested by another individual in the presence of the
individual signing the document, the presence requirement is
satisfied if the individuals are in each other's electronic
presence.
Sec. 2501.058. RETENTION OF ELECTRONIC RECORD; ORIGINAL.
(a) In this section, "governmental agency" means an executive,
legislative, or judicial agency, department, board, commission,
authority, institution, or instrumentality of the federal
government or of a state or of a county, municipality, or other
political subdivision of a state.
(b) Except as provided by Subsection (c), if other law of
this state requires an electronic non-testamentary estate planning
document to be retained, transmitted, copied, or filed, the
requirement is satisfied by retaining, transmitting, copying, or
filing an electronic record that:
(1) accurately reflects the information in the
document after it was first generated in final form as an electronic
record or under Section 2501.059; and
(2) remains accessible to the extent required by the
other law.
(c) A requirement under Subsection (b) to retain a record
does not apply to information the sole purpose of which is to enable
the record to be sent, communicated, or received.
(d) A person may satisfy Subsection (b) by using the
services of another person.
(e) If other law of this state requires a non-testamentary
estate planning document to be presented or retained in its
original form, or provides consequences if a non-testamentary
estate planning document is not presented or retained in its
original form, an electronic record retained in accordance with
Subsection (b) satisfies the other law.
(f) This section does not preclude a governmental agency
from specifying requirements for the retention of a record subject
to the agency's jurisdiction in addition to those in this section.
Sec. 2501.059. CERTIFICATION OF PAPER COPY. An individual
may create a certified paper copy of an electronic non-testamentary
estate planning document by affirming under penalty of perjury that
the paper copy is a complete and accurate copy of the document.
Sec. 2501.060. ADMISSIBILITY IN EVIDENCE. Evidence
relating to an electronic non-testamentary estate planning
document or an electronic signature on the document may not be
excluded in a proceeding solely because it is in electronic form.
SUBCHAPTER C. UNIFORM ELECTRONIC WILLS ACT
Sec. 2501.101. LAW AND PRINCIPLES OF EQUITY. An electronic
will is a will for all purposes of the law of this state. The law of
this state and principles of equity applicable to wills apply to an
electronic will except as modified by this subchapter.
Sec. 2501.102. 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. 2501.103. 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. 2501.104. 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 the 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 physical 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 14
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. 2501.105. ELECTRONIC WILL MADE SELF-PROVING WHERE ALL
WITNESSES NOT PHYSICALLY PRESENT. (a) In this section, "authorized
person" means an individual licensed to practice law in the United
States.
(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;
(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; and
(F) to the best of the authorized person's
knowledge each of the witnesses was at least 14 years of
age.
(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. I also certify that to the best of my
knowledge each of the witnesses was at least 14 years of age.
(Signed)
Sec. 2501.106. 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 14 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. 2501.107. 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. 2501.108. CHOICE OF LAW AS TO EXECUTION. A will
executed electronically but not in compliance with Section 2501.103
is an electronic will under this subchapter if executed in
compliance with the law of the jurisdiction where the testator is:
(1) physically located when the will is signed; or
(2) domiciled or resides when the will is signed or
when the testator dies.
Sec. 2501.109. 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. 2501.110. CERTIFICATION OF PAPER COPY. An individual
may create a certified paper copy of an electronic will by affirming
under penalty of perjury that a paper copy of the electronic will is
a complete, true, and accurate copy of the electronic will. If the
electronic will is made self-proving, the certified paper copy of
the will must include the self-proving affidavits.
SUBCHAPTER D. MISCELLANEOUS PROVISIONS
Sec. 2501.151. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
In applying and construing this uniform act, a court shall consider
the promotion of uniformity of the law among states that enact it.
Sec. 2501.152. 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 15 U.S.C. Section 7001(c) or authorize
electronic delivery of any of the notices described in 15 U.S.C.
Section 7003(b).
SECTION 2. This Act applies to:
(1) an electronic non-testamentary estate planning document
created, signed, generated, sent, communicated, received, or
stored before, on, or after the effective date of this Act.
(2) 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, 2023.