Legislature Provides Necessary Tools to Facilitate Execution of Wills and Trusts and Real Estate Transaction Documents
Massachusetts Governor Charlie Baker has signed into law Chapter 71 of the Acts of 2020 entitled “An Act Providing For Virtual Notarization to Address Challenges Related To COVID-19.” A link to the full text of the Act can be found here: https://malegislature.gov/Bills/191/S2645.
This legislation became necessary in light of the fact that in-person notarization has always been the standard for notarizing wills and other estate planning documents and those instruments effecting title to real estate such as deeds and mortgages. The so-called “Remote Notarization Act” (“RNA”) is effective immediately and will expire and sunset three days after the state of emergency declaration relative to COIVID-19 is lifted.
During this time of mandatory social distancing, the RNA is critical in executing documents that require notarization, including documents prepared in connection with estate planning and real estate instruments. Given current events, the RNA is designed to facilitate such notarization in order to promote health and safety while observing restrictions and social distancing recommendations. The RNA allows for remote or virtual execution and notarization of documents that would otherwise require a notary and/or witnesses to be in physical proximity of the person executing the document.
The RNA mirrors the provisions of legislation regarding the traditional notarization of documents. Accordingly, anyone notarizing or witnessing the execution of documents in this virtual environment will need to adhere to the specific requirements of the RNA in order to make sure that all documents are properly executed.
The following is a summary of the specific requirements of RNA in order to effectuate remote notarization:
- Only Massachusetts attorneys and paralegals who are under the supervision of a Massachusetts licensed attorney may notarize documents remotely or virtually under the RNA.
- Mechanically, the RNA requires the signer and the notary to both have access to electronic devices that have video conferencing capabilities such as a computer, tablet or cell phone with both video and audio recording capabilities and features.
- All parties must be physically located in Massachusetts during the signing.
- All individuals in the room must be seen on the video by the notary and provide satisfactory identification by video in addition to orally disclosing their relationship to the signer so that the relationship may be noted and recorded and they must consent to the video and audio recording of the remote virtual session.
- The signer must provide satisfactory identification by video with copies subsequently sent to the notary, together with the documents to be notarized.
- The notary must observe the actual execution of the documents over the video conference.
- The notary must complete an affidavit affirming the essential elements of the signing.
- With respect to real estate transactions were the notary does not know the signer, a second form of identification including the signer’s photograph and signature issued by governmental agency is required in order to comply with the RNA.
- The recording of the signing and the signer’s identification must be retained by the notary for 10 years from the date of the documents were executed.
- Any documents that are to be recorded as part of a real estate transaction such as a deed, mortgage or easement, the RNA requires a second video conference for verification.
The effective date of estate planning documents such as trusts, powers of attorney HIPAA or health care proxy documents are completed as of the time they are fully executed, notarized and the notary affidavit is attached to the documents.
If you have any questions on having documents notarized under the Act please contact one of our attorneys and please stay connected with us at www.tamkinhochberg.com.