TRUST & ESTATE PERSPECTIVES

COVID-19 and the impact to virtual notarization

Update on recent changes to Virtual Notarization Legislation

As we work to find ways to continue conducting business and moving forward, we have all had to stop and reexamine what we do and how we do it. This approach is not limited to finding ways to educate children remotely, work remotely, and socialize remotely. Certain functions that have historically required in-person interactions are now being looked at to find virtual solutions.

To that end, on April 27, 2020, Massachusetts Governor Charlie Baker signed into law An Act Providing for Virtual Notarization to Address Challenges Related to Covid-19 (the “Notarization Act”). This allows Massachusetts notaries to notarize documents remotely via electronic videoconference technology for the period of time that the Commonwealth is under the COVID-19 state of emergency.

Important facts for Massachusetts

Under certain circumstances, a notary public may notarize signatures that have been witnessed via videoconference technology. This is a temporary accommodation permitting people to sign documents while a notary remotely witnesses the execution of documents.

This will importantly allow for the completion of real estate transactions and execution of estate planning documents while maintaining the Commonwealth’s social distancing guidelines.

The Notarization Act does not have any requirements regarding specific videoconferencing technology, just that the software be capable of recording the videoconference used to conduct notarization. Most documents require one videoconference, while documents required to complete a real estate transaction are required to be notarized via two videoconferences.

The following requirements must be met for all documents that are notarized under the Notarization Act:

  • Both the notary and all parties must be physically present in Massachusetts at the time of each videoconference.
  • The signer(s) must disclose any person present in the room and that person must visible to the notary.
  • The notary must witness the execution of the document to be notarized.
  • The Notarization Act does not change the requirement of having “wet” ink signatures from both the principal and the notary. Virtual signatures via DocuSign and other virtual signatures are not valid.
  • The person executing the documents is required to provide the notary with satisfactory evidence of their identity. Importantly, a notary may still rely on personal knowledge of the signer or may review his or her government-issued identification.
  • If a notary is relying on the use of government-issued identification, the signer must show both the front and back of his or her ID on the videoconference.
  • The signer must provide the notary with a copy of the relevant sides or pages of his or her ID, either with the executed documents or separately via electronic means.
  • The notarial certificate must include a statement demonstrating that the document was notarized remotely pursuant to the Notarization Act and recite the county in which the notary was located at the time the notarial act was completed.
  • The notary must complete an affidavit concerning the execution of the documents.
  • Post execution of the document, the signer must arrange for the original document to be delivered to the notary.
  • Importantly, the notary is required make an audio and video recording of the performance of the notarial act, maintaining a copy of the recordings for a period of 10 years.

Other States

It is important to note that Massachusetts is not the only state to allow for virtual notarization during the COVID-19 pandemic.

New York

The governor enacted an executive order permitting documents to be notarized similarly to Massachusetts. Pursuant to that executive order, any notarial act required under the laws of the State of New York is authorized to be performed virtually in accordance with the following:

  • The person executing the document must present valid photo ID to the notary during the videoconference (unless they are personally known to the notary).
  • The videoconference must allow for live direct interaction.
  • The parties must be physically present in New York at the time of the videoconference.
  • The signer must convey via electronic means a copy of the signed document to the notary on the same date it was signed.
  • The notary may notarize the transmitted copy and transmit it back to the signer.

Florida

In June 2019, Florida enacted a bill allowing for remote online notarization, coming into effect in January 2020. While Florida’s bill was not enacted in response to challenges resulting from COVID-19, it has substantially the same process and impact as the emergency legislation passed by Massachusetts and the executive order enacted in New York.

As always, please consult your with your local jurisdiction and legal counsel for additional information.

Gerald E. Baker

Gerald Baker is the head of Trust & Fiduciary Services and co-head of the Center for Wealth Planning Excellence at SVB Private.

The views expressed in the article are those of the author and/or person interviewed and do not necessarily reflect the views of SVB Private or other members of Silicon Valley Bank and SVB Financial Group. The materials on this website are for informational purposes only, are subject to change and do not take into account your particular investment objective, financial situation or need. Since each client’s situation is unique, you should consult your financial advisor and/or tax planning professional before acting on any information provided herein