On April 23, 2020, after over a month of intense lobbying and several revisions to the original bill, the Massachusetts Legislature passed the Virtual Notarization Act, which will allow remote notarization (via video conference) of estate planning documents like wills, trusts, durable powers of attorney, health care proxies and HIPAA authorizations, as well as mortgages and other documents transferring title to real estate, during the COVID-19 state of emergency. Governor Baker signed the Act into law on April 27, 2020.
The Act provides a means for front line workers, hospitalized individuals and other contemplating their own mortality during these extraordinary times, to execute documents that will allow their final wishes to be carried out should the worst happen, and also permits real estate transactions that may have been months in the making to proceed to completion.
With remote notarization, the principal, the witnesses and the notary do not have to be present in the same place as long as they are visible to each other via video-conferencing technology, such as Zoom or FaceTime.
Under the Act, only notaries who are also Massachusetts licensed attorneys, or are paralegals under the supervision of a Massachusetts licensed attorney, can perform remote notarizations. In addition to the ordinary formalities required for notarization in Massachusetts, the following requirements must also be met:
The principal, any witnesses and the notary must all be physically located in Massachusetts at the time of the signing;
The signors (and all others who might be present in the room with the signors) must verbally identify themselves on the video and consent to video and audio recording of the signing;
Each signor must show some form of government issued identification, such as a driver’s license or passport, on the video, and must also provide a copy of the front and back of the identification to the notary; if the notary does not have personal knowledge of the identity of the signor, a second form of identification, such as a credit or debit card, social security card, tax bill, or utility bill, may be required;
After verifying the identity of the signors and obtaining permission to record the signing, the notary should take the acknowledgment or affirmation of the signors in the usual manner, observing and recording each signor affixing their signature to the document or counterpart;
The original, signed document should be sent back to the notary for the notary’s signature and seal;
In the case of any document relating to conveyance of title to real estate, a second video conference must be conducted where the signors verify that the document in the notary’s possession is the document executed during the first video conference.
Once the above steps are complete, the notary may affix their signature and seal to the document. Since the notary and signors may be in different locations when the document is executed, the Act specifically validates documents signed in multiple locations in Massachusetts, on multiple pages, or in multiple counterparts, as long as the above requirements are met. Documents executed in compliance with the Act are valid for all legal purposes within and without Massachusetts.
As a final step, the notary must execute an affidavit, under the pains and penalties of perjury, that the requirements for remote notarization of the document have been met, and include the name and relationship to the signors of any persons other than the signor who were present for the signing. The affidavit does not need to be recorded or filed with the notarized document, but must be retained by the notary, along with the audio and video recording of the signing and the copies of the signors’ identification, for ten years. The document is deemed complete when all original signed counterparts and the notary’s affidavit are complied.
By its terms, the Virtual Notarization Act will be repealed three business days after termination of the state of emergency declared by the Governor on March 10, 2020. The termination of the Act will not affect the validity of any notarial act performed in accordance with the provisions of the Act while it was in effect.
If you have any questions about creating or executing an estate plan, negotiating and documenting a real estate transaction, or about remote notarization in general, please feel free to contact us.
This website presents general information and is not intended to provide legal advice and it should not be considered or relied upon as such. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as lawyer advertising.