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Massachusetts Passes Emergency Law Authorizing Remote Notarization And Witnessing

Written by: Whitney A. Gagnon & Bradford N. Vezina

4/30/2020

On April 27, 2020, in response to the disruptions caused by the coronavirus pandemic and by the continued state of emergency, Governor Baker signed into law “An Act Providing For Remote Notarization To Address Challenges Related to Covid-19.”  The Act authorizes Massachusetts notaries to remotely notarize legal documents through electronic video conferencing.  This temporary law creates an exception to the requirement that a signatory or “principal” personally appear before a notary public. The Act will facilitate the execution of estate planning and real estate documents while the Governor’s state of emergency declaration remains in effect by allowing a person to sign documents at home while being observed by a notary and witnesses during a video conference.  The new law provides only temporary relief and will automatically be repealed three business days after the termination of the Governor’s state of emergency declaration.

Several requirements must be satisfied for remote notarization and witnessing to be effective under the Act: 

  • The notary must remotely observe each signature on the document.
  • The notary and all other persons (e.g., the principal and witnesses) must be physically located in the Commonwealth during the video conference. 
  • Each signatory must swear or affirm under the penalties of perjury that the signatory is physically located within the Commonwealth, and must disclose the presence of any other person in the room with the signatory and make such persons visible to the notary.
  • Each signatory must provide the notary with satisfactory evidence of identification (as defined by the Act), and the notary public must retain a copy of such identification credential for a period of 10 years.
  • Each signatory must deliver the executed document to the notary immediately after the video conference. 
  • The notary must create an audio and visual recording of the notarial act and must retain such recording for a period of 10 years.
  • The notary must execute an affidavit confirming under the penalties of perjury that certain requirements were satisfied, and such affidavit must be retained by the notary public for a period of 10 years.  Further, it is best practice to include a notarial certificate attached to the executed document confirming that the document was notarized remotely pursuant to the emergency law, and reciting the date that the notarial act was completed and the county in which the notary was located at such time.

Estate Planning Documents

With respect to traditional estate planning documents—namely, a will, trust, durable power of attorney, health care proxy, authorization under the federal Health Insurance Portability and Accountability Act of 1996, nomination of guardian or conservator, and caregiver authorization affidavit—the notarization of these documents is complete when all original counterparts and the notary’s affidavit are assembled.  In other words, no second video conference is required to finalize the notarization process. Only an attorney licensed to practice law in the Commonwealth or a paralegal under the direct supervision of the attorney may remotely notarize estate planning documents.

Real Estate Conveyance Documents

In transactions involving a mortgage or other conveyance of title to real estate, upon receipt of the executed document, the notary and each signatory must participate in a second video conference to verify that the document received by the notary is the same document executed during the first video conference.  In addition, in transactions involving a mortgage or other conveyance of real estate, if the evidence of identification provided by the principal is a government-issued identification credential, and the principal is not personally known to the notary public, then the principal must provide a secondary form of identification.  Similar to remote notarization of estate planning documents, the remote notarization of real estate conveyance documents requires the notary be an attorney licensed to practice law in the Commonwealth or a paralegal under the direct supervision of the attorney.

We are prepared to guide you through these requirements and assist you in finalizing your legal documents during these difficult and unsettled times.

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