By: Katie L. S. Von Kohorn
On April 27, 2020, Governor Charlie Baker signed into law “An Act Providing For Virtual Notarization To Address Challenges Related To COVID-19” (the “Act”), which will allow the execution of notarized documents and documents requiring witnesses in Massachusetts via videoconference during the COVID-19 public health emergency. The Act is effective immediately and will expire three business days after the termination of the public health emergency which began on March 10, 2020.
With the passage of the Act, Massachusetts joins over 40 states in allowing remote notarization of documents.
Under the Act, a Massachusetts notary public may perform notarial acts for an individual for any one or more documents via videoconference in real time. Any document notarized electronically during the public health emergency will have the same effect as an ‘in-person’ notarization.
The Act sets forth detailed requirements that must be followed in order for the remote notarization of a document to be effective:
- The notary must observe each signatory’s execution of the document.
- The notary and all persons signing the document must be physically present in Massachusetts at the time of each videoconference.
- The signer(s) must swear or affirm under the penalties of perjury that they are physically present in Massachusetts and must also disclose any person present in the room with the principal and must make that person viewable to the notary.
- The person signing the document must provide the notary with evidence of his/her identity. The notary may still rely on his or her personal knowledge of the signer. If a government ID is used, the signer must show both sides of the government ID to the video camera, and must provide the notary with a copy of the ID, either with the signed documents or electronically.
- After the execution of the document, the signatory must arrange for the original document to be delivered to the notary.
- The notarial certificate attached to the document must include a recital indicating that the document was notarized remotely pursuant to the Act and recite the county in which the notary was located at the time the notarial act was completed. However, failure to include these recitals will not affect the validity of the document.
- The notary must complete and retain an affidavit concerning the execution of the documents and must also keep an audio and video recording of the signing for at least 10 years after the signing.
Documents to be used in a real estate transaction (including deeds, mortgages, and other documents for recording) have additional requirements:
- Real estate documents must be notarized by an attorney licensed in Massachusetts, or by a paralegal directly supervised by a Massachusetts-licensed attorney.
- Two videoconferences are required. Once the notary has received the original executed documents after the first videoconference, the notary must hold another videoconference with the signer. During the second videoconference, the signatory must once again affirm that he or she is physically located within Massachusetts and disclose to the notary any persons in the room with him or her. The signatory must also verify that the document received by the notary is the same document that the signatory executed during the first videoconference. Once those requirements are satisfied, the notary may then notarize the document, at which point the notarial act is deemed complete.
- If the signatory is not personally known to the notary, real estate documents also require the signatory to provide a second form of identification containing the signatory’s name.
- Notably, the Act provides that failure to follow all of the requirements of the notarial certificate, or failure of the signatory to be present in Massachusetts or to disclose the presence of witnesses to the notary, will not constitute grounds to set aside the title to real property acquired pursuant to the remotely notarized document.
Estate planning documents (will, nomination of guardian, trust, durable power of attorney, health care proxy, HIPAA authorization, etc.) notarized pursuant to the Act also carry additional requirements:
- Estate planning documents must be notarized by an attorney licensed in Massachusetts, or by a paralegal directly supervised by a Massachusetts-licensed attorney.
- Under the Act, the notary may take the attestation of multiple individuals who are physically present in Massachusetts and are participating in the videoconference. Importantly, this provision allows both wills and health care proxies (both of which require witnesses under existing Massachusetts law) to be validly executed pursuant to the Act.
- Estate planning documents may be signed in multiple counterparts by a testator and witnesses, enabling document execution to take place during a single videoconference. After the videoconference, each party must send his or her original documents to the notary. However, estate planning documents are considered valid after the videoconference is complete.
The Act will expire three business days after the termination of the Massachusetts COVID-19 state of emergency declared on March 10, 2020.
Please feel free to reach out to your contact in the Real Estate or Private Client group at Casner & Edwards, LLP with any questions, or to schedule a video signing conference for your documents.