Remote Online Notarization Becomes Law in Massachusetts During COVID-19 Emergency

by Shanna Giora-Gorfajn and Regina Mandl

On April 27, 2020, the Virtual Notarization Act (the “Act”) was signed into law by Massachusetts Governor, Charlie Baker, and was effective immediately.  The Act allows Massachusetts notaries, using videoconference technology, to notarize documents remotely during the present COVID-19 state of emergency.

The Act not only allows for the completion of real estate transactions and other documents that may require notarization before filing with a court or registry, but also the execution of estate planning documents, including trusts, wills, and “lifetime documents” such as health care proxies and durable powers of attorney.

The Basics

The notary and the principal, as well as any participating witnesses, must be physically located in Massachusetts at the time of the videoconference and must sign the documents by hand in ink. The notary must observe each person signing the document. The notary must complete an affidavit and keep a recording of the videoconference for a period of 10 years. For certain real estate, probate, and estate planning documents, notarization under the Act may be conducted only by an attorney admitted to practice in Massachusetts or a paralegal under the direct supervision of a Massachusetts attorney.

The Act will remain in effect for 3 business days after the Governor terminates the present state of emergency. After that time, remote notarization will no longer be permitted in Massachusetts, but documents notarized while this law was in effect will remain valid.

Multiple Signatories, Multiple Counterparts

The Act allows for socially-distanced witnessing, providing that if the signature of a witness who participates in the videoconference is notarized, it will be considered as valid as the signature of an in-person witness. This is particularly relevant for the execution of two important types of estate planning documents - a Health Care Proxy and a Last Will and Testament—each of which requires two “disinterested” witnesses, who generally would not be members of the principal’s household.  As a result, notaries may find themselves certifying witness signatures on documents that typically do not require notarization (such as a Health Care Proxy) when the principal and the witnesses are all signing together at the same time and in the same space.

If multiple people are signing from multiple locations (for example, two witnesses to a will execution), each person may sign a separate, identical copy of the document during the same videoconference.  Each person must send the document with his or her original signature to the notary, who will then sign, stamp, and attach the required affidavit to the document. For specified probate and estate planning documents, the document is deemed complete when all original counterparts and the notary’s affidavit have been compiled together.

Remote Notarization Procedure

The Act describes a strict procedure for remote notarization, with added requirements for real estate and mortgage transactions. This procedure differs from typical notarization in several key ways:

  • During the videoconference, each signer must swear or affirm that she or he is located in Massachusetts.
  • Each signer must disclose the presence of any other person in the room, and make that person visible to the notary.
  • The notary must record the videoconference and obtain each signer’s verbal consent to that recording.

Identification of Principal and Witnesses

If the notary does not personally know a person signing the document, the signer must display both sides of a government-issued identification document (e.g., driver’s license or passport) to the notary via the videoconference and provide the notary with a copy of that identification document, either electronically or in a hard copy along with the executed document.  For real estate documents, two forms of identification are required.

Videoconferencing

The notary must observe each person signing the document during the videoconference, even if the document would ordinarily require only that the principal acknowledge his or her signature.  Each signer must then have the executed document delivered to the notary public by courier, delivery service, or other means as the notary directs. This may result in the notary receiving a document and completing the notarial act several days after it was executed by the principal.

For real estate and mortgage transactions only, before the notarial act can be completed, the notary and signer must engage in a second videoconference to verify that the document received by the notary is the same document executed by the signer.

Changes to the Notary Certificate

The notarial certificate needs to state: (1) that the document was notarized remotely under this Act; (2) the county where the notary was located when she or he completed the notarial act; and (3) the date that the notarial act was completed, which may be later than the date the principal executed the document - although for mortgage finance transactions only, the notarial certificate may instead include the date referenced in the body of the document.

Notary’s Affidavit

With respect to each signer, the notary must also complete an affidavit confirming that she or he: (1) inspected the signer’s identification during the videoconference and received a copy of that identification; (2) obtained verbal consent to record the videoconference; (3) has taken the signer’s affirmation that she or he was physically present in Massachusetts; and (4) was informed of each person physically present with the signer, including that person’s relationship to the signer, and has noted each such person on the affidavit.  Estate planning documents are deemed complete when the notary’s affidavit is compiled with all original counterparts.  However, for real estate documents, this affidavit need not be recorded or filed in a registry of deeds or registry of the land court.

The notary public must keep this affidavit for a period of 10 years, as well as the videoconference recording and copies of any identification documents provided by the signers.

While the temporary emergency provisions of the Act are presently in place, existing Massachusetts law regarding notaries public (M.G.L. ch. 222) otherwise remains in effect.