Although the legal world is increasingly (and somewhat reluctantly) relying on electronic documentation, pen-to-paper signatures remain an important part of documenting key business and life decisions and milestones. At least in Massachusetts, New York and most other jurisdictions, deeds, mortgages and wills (among other things) must generally be printed on paper, signed with a pen and notarized by a notary public (with a pen and usually a seal or stamp).
Historically, the law required the person signing a will, deed or mortgage to be physically in the same room with a notary public when they signed the document, and then required the signatory to acknowledge that they executed the document voluntarily. However, given that a large portion of the population is working from home and that in-person real estate closings may be unwise in the current environment, many jurisdictions have put in place methods for remote notarization whereby the signatory can sign and acknowledge a document with the notary public participating by remote videoconference.
Massachusetts Governor Charlie Baker recently signed into law an act which does just that. The statute, “An Act Providing for Virtual Notarization to Address Challenges Related to COVID-19,” allows a signatory to “appear” before the notary public by real-time videoconference to have a document notarized. Although there are a number of requirements for remote notarization, this new process allows individuals and businesses to have their important documents notarized while maintaining social distancing.
There are limitations and stringent requirements for documents to be notarized by videoconference. Most importantly, the statute automatically expires three 3 business days after the termination of the current state of emergency, so this is only a short-term measure. In addition, even though the notarization may occur by videoconference, both notary and signatory must physically be within Massachusetts. Most types of documents required for legal transactions that typically involve a lawyer (e.g., wills, durable powers of attorney, deeds and mortgages) can only be notarized remotely by an attorney or a paralegal under the supervision of an attorney.
The process also is more cumbersome than an in-person notarization. The documents being notarized must still be printed and signed with wet ink. Those original documents must then be sent to the notary public who must also sign the original documents and affix the notarial seal or stamp. With real estate transactions, there must also be a second videoconference once the notary receives the original documents. Finally, the videoconference(s) must be recorded and the notary must sign an affidavit setting forth certain facts about the notarization. Copies of the videoconference recording(s) and the affidavit must be retained by the notary for a period of ten years.
All that said, remote notarization is now an option that can allow documents to be notarized from the comfort of your home.
Although outside the scope of this alert, it is worth pointing out that within Sullivan’s U.S. footprint, New York is also temporarily allowing remote notarizations, and Virginia and Maryland have existing statutes allowing online notarization in certain circumstances. The District of Columbia does not permit remote notarization.
