We have been keeping you updated here on the progress of legislation to authorize, on a temporary basis, the practice of remote notarization and witnessing of documents, which the BBA endorsed.
We’re pleased to report that Governor Charlie Baker signed the bill into law last week. It took effect immediately and will apply until three days after the Governor’s state of emergency is ultimately lifted.
This issue was urgent, because, as we stated in our letter to the Legislature:
We have heard from BBA members across a variety of practice areas—including real estate, family law, trusts and estates, and bankruptcy—that their work is being hindered, and clients’ urgent needs left unaddressed, by the requirement that notarization and witnessing be conducted in person. It is especially unfortunate that, at a time when health concerns, if not actual illness, have led many to focus on their estate planning, quarantine orders and self-isolation are complicating and often preventing the execution of the necessary legal documents to achieve their goals.
The final legislation represented a compromise among a broad coalition representing various practice areas and other stakeholders, including banks and insurance companies. The new law was further tweaked by lawmakers, and while not all parties got everything they wanted, the consensus was that passage in some form took precedence during this crisis over any particular provision.
We were relieved that the Legislature and Governor were able to move this bill through the current limited process, in spite of the hardships they themselves face and the many other pressing priorities before them. Here are some of the highlights of the law:
- The act permits execution, notarization, filing, or recording of virtually notarized legal documents such as wills, trusts, nominations of guardians or conservators, caregiver authorization affidavits, durable powers of attorney, health-care proxies, and HIPAA documents, as well as mortgages and other documents transferring title to real estate.
- Only a notary who is also a Massachusetts attorney, or a paralegal under a Massachusetts attorney’s direct supervision, can notarize such documents remotely or virtually. The Act clearly excludes non-attorney notaries from remotely notarizing wills, trusts, personal and asset protection documents and real estate transfer and mortgage documents.
- Via videoconference, documents may be executed and notarized remotely if:
- all parties are physically located in Massachusetts during the signing;
- the signers and all others in the room with the signer consent to the recording;
- the signer provides satisfactory identification by video, with copies subsequently sent to the notary;
- If the documents relate to a real estate transaction and the notary does not know the signer, a second form of identification containing the signer’s photograph or signature or issued by a governmental agency, is required to comply with the Act.
- Copies of the signer’s identification must be retained by the notary for ten years from date of execution.
- all others in the room are seen on video by the notary and provide satisfactory identification by video and disclose their relationship to the signer;
- the notary observes the actual execution of the documents by video;
- the executed documents are delivered to the notary, as directed, for notary signature, stamp, and certification;
- the notary completes an affidavit indicating receipt of the signer’s identification documents, visual inspection of the credentials during the video conferences, consent to record the video conferences, confirmation that signer was physically located in Massachusetts and noting all of the individuals present in the room with the signer and their relationship to the signer.
- If any of the executed documents are to be recorded in connection with real-estate transaction (deed, mortgage, easement etc.) a second verification video conference is required.
- Notaries are required to keep copies of their certifications, affidavits and video and audio recordings of the remote sessions for ten years.
You can read more, and view sample forms, here.
We thank all the BBA sections that brought this issue to our attention, the members who helped support our advocacy by contacting their legislators to explain its importance to the practice of law, and the coalition members who led this effort, including the Real Estate Bar Association of Massachusetts and the Massachusetts chapter of the National Academy of Elder Law Attorneys.
Government Relations Director
Boston Bar Association