Law360 (May 15, 2020, 5:41 PM EDT) --
|Katie Von Kohorn|
With the passage of the act, Massachusetts joins over 40 states in either temporarily or permanently allowing remote notarization of documents (prepandemic, approximately 45% of states allowed some form of remote notarization). Prior law in Massachusetts had required that all notarization and witnessing be completed in person, with all parties in a room together.
Social distancing in the time of the COVID-19 pandemic was fundamentally incompatible with the in-person requirements of notarization, and before the passage of the act, some attorneys (including the author) had notarized documents through a window, outside at a picnic table, or in the trunk of a car.
Health care workers, elderly individuals and other clients with health concerns who had draft estate planning documents in process had either put their health at risk by signing documents in person, or had delayed implementing their wishes by leaving estate planning documents unsigned. Likewise, real estate closings had been delayed or cancelled during the pandemic, with would-be purchasers and sellers unwilling to spend extended time in a room with their closing attorney.
Under the new law, 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.
- The signer(s) 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 (as under prior law).
- For the purposes of the act, a signer's drivers' license, passport or other government-issued ID with photograph and signature satisfies the identification requirements.
- If a government identification 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.
- Acceptable secondary identification for purposes of this provision include credit cards, debit cards, social security cards or a tax or utility bill dated within 60 days of the first video conference. Copies of the signer's identification must be retained by the notary for ten years from date of execution.
- 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.
It remains to be seen whether the savings provision in the act stating that title to real property acquired pursuant to the remotely notarized document will not fail for lack of following all of the technical requirements of the act, will forestall any litigation over the validity of real estate documents, and the possible clouds on title, occurring with respect to real estate transfers during the pandemic.
Estate planning documents, such as a will, nomination of guardian, trust, durable power of attorney, health care proxy and Health Insurance Portability and Accountability Act authorization, among others, 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.
- If the witnesses are not personally known to the notary, then the witnesses must provide identification to the notary in one of the same forms as stated above.
- 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: for example, should a testator die shortly following the videoconference, before the compilation of the original signatures has been completed.
The act leaves several unanswered questions.
First, it fails to address the need in many real estate, estate planning and other transactions to obtain signatures from people located outside of Massachusetts. At best, it creates ambiguity about how notarial acts involving signatories located outside of Massachusetts are to be treated. Section 5 of the act states:
Does this language mean that if a document contains a Massachusetts virtual notarization, then all notarizations for that document must be Massachusetts virtual notarizations? If so, this would be counter to practice under in-person notarizations, where notarizations from two or more states can be attached to a single document. This language could also prevent combining an in-person Massachusetts notarization and a virtual Massachusetts notarization.
A document signed on multiple pages or in multiple locations within the commonwealth or in multiple counterparts shall be valid and effective if it is otherwise in conformity with this act.
Second, the savings language which applies to real estate documents, above, providing that failure to follow all the technical requirements of the notarial affidavit, and 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, does not apply to estate planning documents.
Thus, it may be that a will signed pursuant to the act, during which either the testator or one of the witnesses was not physically present in Massachusetts (despite swearing under the penalties of perjury that he or she was in the commonwealth), would fail as a valid will.
Does this mean that Massachusetts estate planning attorneys should take additional steps to ensure that the documents are being signed correctly? For example, should an attorney virtually notarizing a will or other estate planning documents also track the IP addresses or phone locations of his or her client(s) during the remote notarization videoconference?
Post-pandemic, the real estate and probate bars may face a wave of litigation, either over the ambiguities in the remote notary statute or through contests over the validity of documents signed during the pandemic. Will future litigation roll back the tide of legislation allowing increased access to electronic signatures and notarization? Or conversely, will the increased convenience of signing documents remotely mean that remote notarization is here to stay? Stay tuned, and stay safe!
Katie L. S. Von Kohorn is a partner at Boston law firm Casner & Edwards LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 See Massachusetts Lawyers' Weekly article: https://bit.ly/3bqYsI2.
For a reprint of this article, please contact firstname.lastname@example.org.