Many clients ask if they can sign their estate planning documents via DocuSign. We agree that signing documents electronically through the use of digital signatures is efficient; however, until we have further clarity in the law, estate planning documents may not be effective with a digital signature.
The electronic execution of documents is authorized by the Texas Uniform Electronic Transactions Act (UETA).
Digital signatures cannot be used to execute wills and codicils because they are expressly excluded by the UETA.
Most other estate planning documents also don’t fall within the authority of the UETA because they do not relate to a “transaction” as defined by the UETA. The term “transaction” is “an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two or more persons.”
Transactions with no relation to business, commercial or governmental affairs are not subject to the act.
Much debate has been had and industry standard is that estate planning transactions don’t relate to the conduct of “business, consumer, or commercial affairs.” Additionally, many are not between two or more persons.
This area of law is subject to interpretation and likely to change in the future, but until it does our advice is to error on the side of ensuring your documents are legally signed without question.
It should also be noted that this area is frequently discussed in the estate planning community. Our firm stays abreast of what other cutting-edge estate planning attorneys are doing for best-practices. We think change in the estate planning community is coming and when it does, we will implement digital signing with our estate planning clients. Our office does subscribe to DocuSign and when possible, we do use it, most frequently with our business counsel clients.
