Can a Will be Made During the COVID-19 Lockdown?
Updated: Apr 15
UPDATE: Since this post was originally written, Governor Abbott has issued an order suspending the requirement that a notary must be present in-person to notarize a will and certain other types of documents. The order allows the notary to authenticate a document based on a video conference. While this order is helpful in some situations, it still does not eliminate the issue that a will must be signed "in the presence" of witnesses. As such, I am still convinced that working with a lawyer to create a simple handwritten will may be the best option for some people until you can do a formal will signing.
With COVID-19 lockdowns in place all around the country, and social distancing practices becoming the new normal, executing a will while complying with the recommendations of government and health officials is becoming problematic. Lifehacker recently published this article on the subject, in which Chas Rampenthal, General Counsel at LegalZoom, made a couple of suggestions for how it might be done.
In Texas, with one exception that I will discuss below, a will must be witnessed by two or more credible witnesses above the age of fourteen who sign the will in the presence of the testator. The language of this requirement is a little confusing. It isn't the testator who must sign the will in the presence of the witnesses, but vice-versa. However, it is also clear that the will must be executed "in the presence" of the testator. This means that a digital or remote execution of a will is not a good idea.
You should not use family members to witness your will. Even though you may already be in close, day-to-day quarters with family members, they are generally not considered to meet the requirement that witnesses be "credible" if they stand to gain in one way or another from the will.
I won't go into Rampenthal's suggestions in detail here (you can read about them in the link), but the bottom line is that it will be difficult to execute a valid will while maintaining safe social distances. However, if you can get two witnesses and a notary to meet you at a location such as a public park on a day that isn't too windy (or else you'll have a LOT of papers flying around), it can be done. Likewise, hospitalized patients who need to make a will may be able to secure the cooperation of the hospital in providing the gear that is needed to protect the witnesses and the notary.
For some people, however, processes like this may not be possible. What can be done in those situations? There are a couple of options.
First, you can make and sign a will without signatures or a notary. This type of will is not going to be legally valid and cannot be probated by your heirs. As a result, they will have to go through a process that is much more costly and time-consuming in administering your estate than would be required had you signed a valid will. However, it will at least let your family know what your intentions are should you pass away before you can get it properly witnessed and signed.
Second, you could make something called a holographic will. In Texas, where I practice, a will that is written entirely in the handwriting of the person making the will is considered to be valid. This is not - I repeat not - the best way to go about making a will, but in difficult circumstances, it may the best option that is available.
Wills tend to be long-winded instruments with a lot of detailed language. If you are going to write out an entire will in your own handwriting, you will probably need to find ways to pare it down. In a best-case situation, you would have an attorney prepare the language for you that should go into the will, and then you can write it out and sign it yourself on a word-for-word basis. Later, when social distancing practices are lifted, and it is safer for it to be executed properly, your attorney can provide you with a will that is executed and notarized in the "normal" manner.
The bottom line is that, regardless of circumstance, there is no substitute for having your will prepared by and executed in your attorney's office. However, there are less than ideal ways of addressing the requirements for executing a will while practicing safe social distancing, and each situation is going to present different challenges. In the end, you will have to decide on what will work best in your situation.