Proving a Real Signature in a Surreal World: Notarization Concerns in a Pandemic (Part 2)

April 15, 2020

On April 6, 2020, McGuireWoods issued an alert analyzing issues facing attorneys, clients and notaries in the execution of documents during a global pandemic. The alert also provided a summary of state legislation and state-issued executive orders permitting the use of remote online notarization (RON) of documents to address concerns of in-person execution requirements during the COVID-19 outbreak.

As anticipated, more states have issued new — or expanded the scope of existing — executive orders permitting remote and/or online notarization. In some instances, they also relaxed the execution requirements for estate planning-related documents.

This second alert summarizes the additional and expanded state executive orders issued and legislation passed between March 31, 2020 and April 10, 2020.

A. Remote Notarization Statutes

In our first Alert, we advised that prior to 2020 a number of states had adopted and allowed commissioned notaries to perform services by RON. In addition to these states, Washington D.C. has permitted remote notarization since 2018. Additionally, in reaction to the COVID-19 pandemic, California, Kansas and South Carolina are actively considering enacting RON legislation, and as previously reported, Massachusetts, New Jersey and Pennsylvania have pending legislation.

B. Remote Notarization by Executive Order

In addition to the previously reported executive orders, the governors of Arizona (Executive Order 2020-26), Georgia (Executive Order), Hawaii (Executive Order No. 20-02), Louisiana (Proclamation), Maine (EO 37), Maryland (Executive Order 20-04-10-01), Mississippi (Executive Order 1467), Missouri (EO 20-08), Rhode Island (Temporary Performance Guide) and West Virginia (Executive Order No. 11-20) have issued executive orders relaxing in-person notarization requirements, including remote notarization through electronic or online means. In some instances, these executive orders are limited in scope and applicability. For instance, the executive order issued by the governor of Georgia is limited to deeds and real estate documents. Similarly, Pennsylvania suspended in-person notaries on a limited basis, and permitted RON temporarily for some real estate transactions. (See Suspension of 57 Pa.C.S. § 306.)

Further, as previously reported, Nebraska passed legislation permitting RON, to become effective July 1, 2020. By Executive Order No. 20-13, the governor of Nebraska accelerated the effective date of the legislation to April 1, 2020. And, on April 3, the governor of Alabama extended the reach of its initially issued executive order to provide that a notary may also confirm the signature of witnesses through electronic means. (See the Alabama Executive Order.) Finally, the governor of Michigan, which has a RON statute, extended application of its statute by suspending additional notarial requirements in Executive Order No. 2020-41.

C. Swearing in of Witnesses

The executive orders issued in Florida, Indiana, Louisiana and South Carolina also apply to swearing in of witnesses in court proceedings, including depositions, to allow a notary who is authorized to administer oaths, to do so remotely. While court hearings and related proceedings may occur with less frequency during the pandemic, to the extent hearings are necessary, the application of the executive orders in these states to the taking of testimony is helpful to limit in-person contact.

D. Estate Planning Documents

At this time, execution of estate planning documents is critical, and many state laws require wills and related estate planning documents to be notarized and/or witnessed. Some states have specifically addressed the concerns of requiring in-person witnessing and notarization of essential estate planning documents through their executive orders. Orders issued in Kansas, Kentucky, Maine, Missouri, New York, Tennessee and Wyoming permit remote notarization and witnessing of documents. The executive order issued in Illinois also allows for remote witnessing and execution and witnessing of documents in counterparts, to help facilitate proper execution of documents while limiting in-person contact that would be required by simultaneous execution and witnessing. Further, the executive order in Connecticut permits remote witnessing of a will if the notarial act is performed by an attorney licensed by the state of Connecticut.

Several states have enacted legislation providing for more relaxed requirements in the execution of estate planning documents. Specifically, on April 9, 2020, Alaska enacted legislation permitting the remote execution of wills, including the witnessing of the will, if the testator is in a high-risk category for COVID-19. Additionally, Washington, D.C., passed a statute permitting electronic wills, which allows for the execution of a will by a testator who is either a resident of D.C. or physically present in D.C. at the time the will is executed, and which will is witnessed by two persons who can see and hear each other at the time of signing (meaning that the witnesses do not have to be in the presence of the testator). The execution of the will must be attested to through a certification attached to the will. This legislation significantly relaxes the otherwise stringent requirements for the execution of a will and, interestingly, is applicable to non-residents of the District of Columbia, so long as the testator is present in D.C. when the document is executed.

Finally, Texas, a state that already allows RON in some instances, suspended certain statutes to avoid the in-person notary requirement to execute self-proving affidavits for wills, durable powers of attorney, medical powers of attorney, directives to physicians, and oaths of executors, administrators and guardians. (See Gov. Greg Abbott’s press release.)

McGuireWoods will continue to monitor and publish updates about states’ reactions to the COVID-19 pandemic pertaining to notarial and witness requirements.

McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.