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Remote Notary Laws for COVID-19

As confirmed COVID-19 cases in the United States approach 1.5 million, state governments are seeking ways to allow life to continue safely. Part of that effort involves passing remote notary laws that allow documents to be notarized digitally rather than the customary in-person method, which helps professionals such as estate planning litigation lawyers do their jobs. According to the National Association of Secretaries of State (NASS), a total of 47 states have taken steps to make e-notarization possible, but what is it?

Estate Planning and Notaries

Establishing the authenticity of legal documents is one of the most important parts of estate planning. Often, estate documents such as wills are challenged in court by introducing materials (testimony or other written communication) that are meant to show that the official documents do not actually reflect the desires of the person in question.

What notaries public do is bear witness to the signing of such documents, and this ensures at least two things. First, it helps establish that the documents in question are authentic, meaning that the person who signed them knew what was in them and that witnesses can be called to testify regarding them. Second, notarization gives courts good reason to believe that the will or other document best reflects the wishes of the person. The assumption is that people do not enter into official legal proceedings lightly.

Traditionally, all parties must be in the presence of a notary public for the notarization to be valid. COVID-19 has created problems for that requirement, though, both because people are voluntarily reducing social interactions and because states are requiring people by law to only travel for essential purposes. These challenges have prompted states to issue temporary laws (or executive orders) that allow legal proceedings to take place remotely, but there are still strict rules to follow.

Requirements of Remote Notarization

Even though states are allowing remote notarization, there are still limitations. Many states are using the guidelines published by NASS in 2018 as a useful starting point. For instance, the association presents criteria for determining if an electronic seal is reliable, meaning it is unlikely to be forged.

In general, the following requirements must be met. First, the identity of the parties must be established. The notary will need some way to confirm who you and the other parties are. Two valid forms of government identification will be the most common method. This does mean, though, that the notary must be able to hear and see all of the relevant parties. Phone calls or text messages will not work.

Second, the documents must be the same. If there are differences between the document the notary is viewing and the document you are viewing, the notarization cannot happen. Third, the notary must make an audiovisual recording of the process in case the courts ask for it during litigation. Keep in mind that these rules can change from state to state.

Will a Remote Notarization Work for You?

There is no doubt that notarizing documents via a remote notary public is useful, but it is not foolproof. Because the laws are new and many of them temporary, it is unclear how exactly legal proceedings involving them will function in each state. It may be that the process of litigation becomes longer and more expensive. For example, the involvement of a forensics firm to examine a digital seal for tampering could lengthen the process, but such cases will probably be rare.

The good news is that, unlike some other fields, estate planning can largely be done remotely. Your best course of action is to find an estate planning litigation lawyer who is familiar with using digital platforms. Not only will this make the process easier and faster for you, but it will also guard against costly mistakes that are common in the digital world.

The Knee Law Firm Can Help

If you are considering entering into estate planning because of COVID-19, you are not alone. We understand that this process can be confusing and difficult, but we are here to help. For the past two decades, we have assisted individuals and families in taking care of their property and ensuring their wishes are clear and followed. If you would like to learn more about planning an estate, you can give us a call at (201) 996-1200 at our office in Hackensack or email us today.

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