The Brave New World of Virtual Notarization

The COVID-19 pandemic and consequent state and federal guidelines forced people to work from home before they were able to take steps so that they could do so effectively. This new working dynamic presents unforeseen challenges for those who rely on traditional in-person notarizations. Unsurprisingly, one related consequence has been increased interest in and questions about remote online notarization.

Remote online notarization, or “RON,” allows the notary to use technology, such as Zoom, Skype, Webex, or Facetime, to notarize a document when the signer of the document is in a different location. The RON movement had a slow start. Virginia was the first state to authorize the use of RON in 2010, and ten years later, in early March of 2020, Wisconsin had become only the 23rd state to do so. Since the onset of the pandemic, the number of states allowing RON has skyrocketed: at the time of submission of this article, 43 states, whether by statute or executive order, have authorized RON.

As can be expected, the landscape of RON across the country can vary widely. As an initial matter, there may be significant differences between states that authorized RON prior to the pandemic or after. For example, states that authorized RON in response to the pandemic are more likely to have such authority expire, such as Massachusetts (3 business days after termination of the governor’s March 10, 2020 declaration of a state of emergency) and New York (June 6, 2020). States with pre-existing statutes typically do not have expiration dates, such as Minnesota and South Dakota.

In addition, states have varying substantive requirements to achieve a valid notarization. In Minnesota, for example, the notary must complete a registration with the secretary of state that includes a certification that the notary intends to use communication technology that conforms to the Minnesota statute. In addition, the notary must be physically located in Minnesota and follow a specific protocol for proof of identity.

In South Dakota, a notary can remotely notarize a document so long as the notary has personal knowledge of the person signing the document. Once the document is signed remotely, the notary must sign the original document and swear to the following in an acknowledgement: (1) the location of the person who signed the document; (2) “[t]hat the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial office, but appearing by means of communication technology”; and (3) that she was “reasonably [able] to confirm that the document before the notarial office [was] the same document in which the person made the statement or on which the person executive a signature.”

In Massachusetts, both the notary and the individual signing the documents must be located within the Commonwealth. Plus, the video conference during which the documents are notarized must be recorded, and that recording must be retained for 10 years. Further, estate planning documents must be notarized either by an attorney or an attorney-supervised paralegal. But before an attorney in Massachusetts or any other state remotely notarizes any document, they should check with their malpractice carrier first, as some policies specifically exclude RON from coverage.

Even states that do not authorize RON within their state may make allowances for RON performed elsewhere. For example, California citizens may notarize their documents remotely in a state that allows RON. So long as the documents are notarized pursuant to that state’s rules and regulations, such documents will be accepted in California.

While more states are authorizing RON, there may be unintended consequences that could lead to problems long after the pandemic is over. Careful attention must be paid to dates when the time comes to administer an estate. For instance, in those states where RON is authorized via executive orders, attorneys and fiduciaries must ensure that the executive order was valid, unexpired, and not rescinded by subsequent state governors when the estate planning documents were notarized remotely. In addition, RON can overlap with other short-term allowances that have been made during the pandemic, such as the extension of expiration dates of driver’s licenses if the licenses expire during the COVID-19 emergency. In such situations, notaries may be able to accept expired driver’s licenses as proof of identify, but they must stay informed as to when the emergency is lifted, after which, only unexpired driver’s licenses would be accepted.

Perhaps most importantly, one of the critical aspects of traditional notarization is the opportunity for the notary to confirm that the individual understands what he or she is signing: that the individual is competent and is not being unduly influenced. With RON, that opportunity is limited, as the individual controls what the notary can and cannot see with videoconferencing technology. While some states require the notary to ask the signer if anyone else is in the room, the notary has no way to verify the truth of the signer’s answer.