Rackemann Alert: Remote Notarization in Massachusetts
As attorneys and their clients adjust to the current realities of social distancing during the COVID-19 pandemic, one of the most pressing issues facing estate planners and real estate practitioners is how to have documents properly notarized and witnessed without having the notary, witnesses and signatory in the same physical space. As the result of collaboration between estate planning attorneys, the real estate bar, and legislators, a bill responding to this emergency need was recently signed into law by Governor Charlie Baker (Chapter 71 of the Acts of 2020) (the “Act”). The Act authorizes remote notarial acts via video conference from April 27, 2020 until three business days after termination of the Governor’s March 10, 2020 declaration of a state of emergency.
Only Massachusetts notaries who are attorneys, or paralegals under the direct supervision of an attorney, may execute remote notarizations by following the steps laid out in the Act, as described below. [NOTE: the necessary steps are slightly different for executing “Estate Planning Documents” (such as wills, trusts, durable powers of attorney, and health care proxies) and executing “Real Estate Documents” (such as deeds, mortgages or other conveyance of title to real estate which will be recorded in the Registry of Deeds)].
For both Estate Planning Documents and Real Estate Documents, the process for remote notarization is as follows:
- Each person signing the document as a principal or as a witness (the “Participant”) must swear to the notary under the pains and penalties of perjury that he/she is physically located within the Commonwealth [NOTE: the notary must also be within the Commonwealth];
- Each Participant must disclose and visually verify on video all persons present in the room with the Participant during the videoconference [NOTE: the witnesses to the document may be in a separate location so long as all parties are present for the videoconference at the same time and in the Commonwealth];
- Each Participant must visually display his or her identification credential to the notary and the notary will visually inspect such credential [NOTE: personal knowledge of the Participant is also satisfactory evidence of identification];
- Each Participant must acknowledge that the documents being signed are to be notarized remotely under the laws of the Commonwealth; and
- The notary will then observe each Participant execute the subject documents.
- For Estate Planning Documents only: During the videoconference, the notary will complete any required affirmation, acknowledgment and other acts as a notary, as appropriate.
- The Participants must deliver the original, signed documents to the notary along with copies of the front and back of their identification credentials.
- For Real Estate Documents only: Upon receipt of the original, executed documents, the notary must hold a second video conference with the Participants where each signatory will verify to the notary that the document received is the same document they executed during the first videoconference. Only then may the notary complete any required affirmation, acknowledgment and other acts as a notary.
Following the execution of the documents, the notary must complete an affidavit confirming under the penalties of perjury that the mandatory elements of the videoconference(s) were properly overseen pursuant to the requirements of the Act, and that copies of all required documentation were received. The notary shall retain the copies of the affidavit, copies of the Participants’ identification credentials, and a copy of the video conference for 10 years.
The document executed via remote notarization is valid when signed by all parties, but is deemed “complete” when the notary compiles all of the original counterpart signatures, the affidavit and copies of the identification documents with the complete document.
NOTE: All documents notarized under this document should have modified signature blocks and notarial certificates acknowledging they are executed under the provisions of the Act and recite the county in which the notary was located at the time the notarial act was completed.
This Rackemann Alert was prepared by Heidi A. Seely and Angel Kozeli Mozina. If you need any assistance executing documents pursuant to the new Act, please contact any of our attorneys at Rackemann, Sawyer & Brewster. We look forward to being of service to you.