On April 27, 2020, Governor Baker signed a new Massachusetts law legalizing the use of videoconferencing services in signing documents before notaries public and witnesses during the COVID-19 crisis. This will allow real estate closings, the execution of estate plans, and the signing of other documents that require such formalities to take place remotely. The new law expires by its terms three (3) business days after the end of the Governor’s March 10, 2020, Emergency Declaration. The new law has several requirements that must be strictly observed.
- The Notary Public Must be a Massachusetts Attorney or Paralegal. If a paralegal conducts the ceremony he or she must be under the direct supervision of an attorney.
- All Persons Signing Must Be Located in the Commonwealth. The new law requires that all persons participating in the ceremony be physically located in Massachusetts and must swear to the notary public under penalties of perjury that he or she is so located.
- Satisfactory Identification Must Be Provided. Each person must display to the notary public satisfactory identification under Massachusetts law, which is a government identification such as a driver’s license or passport with a photograph, or if the notary is personally acquainted with the signer the notary can indicate this in the notarial certificate. If identification is used, a copy must be transmitted to the notary public with the executed document or sent separately by electronic means and such copy must be safely stored by the notary public for ten (10) years. For real estate documents, a secondary form of identification must also be shown to the notary public.
- Notary Must Observe Each Signer and Be Aware of All Persons in the Room with the Signers. Before the signing occurs the person signing must make the notary public aware of all other persons in the room with him or her, state their relationship to the signer, and visually display such persons to the notary public. The notary public must see each signer sign the document and the usual acknowledgment, affirmation or oath, as appropriate, must be taken. The notarial clause must recite that the ceremony was conducted pursuant to the remote notarization law.
- The Executed Document Must Be Sent to the Notary. The signers must take steps to deliver the executed document to the notary public by courier, delivery service or other means as instructed by the notary public. Presumably return envelopes will be supplied with documents to be signed remotely by the notary, supervising attorney or attorney’s staff. When all counterparts are received by the notary, they can be assembled to complete the document.
- The Entire Proceeding Must Be Recorded. The statute requires that the remote signing be recorded by the notary public. Each signer must assent to the making of the recording. Where the signers and witnesses are in different locations all signatures must be recorded. If the document involves a mortgage or transfer of real estate, after all copies of documents are received, a second videoconference must occur with the signer and the notary to confirm that the documents received were the documents signed. All videoconferences must be retained by the notary for ten (10) years.
- The Notary Must Complete an Affidavit Regarding the Ceremony. The notary public must execute an affidavit under the penalties of perjury reciting that the notary has inspected the identification of each party and received a copy, received each party’s assent to the electronic recording, and taken each party’s oath or affirmation that the party is located in Massachusetts, and note the name and relationship of each additional (non-signing) person in the room with the person(s) signing. The affidavit must be retained for (10) years.
While the requirements of remote notarization are complex and even somewhat onerous, they are designed to guarantee the authenticity of documents and make them more resistant to challenge later. Importantly, a person who witnesses a document remotely is considered under the law to be present in the company of the signer. This enables the remote signing of wills which has been extremely difficult since the COVID-19 crisis began. If you have been delaying the execution of a will or other estate planning or legal document, consult your Burns & Levinson attorney for guidance in accomplishing this now.
About the Author: Clifford Cohen
Cliff Cohen is Chairman of Burns & Levinson’s Trusts & Estates Group. He has over twenty-five years experience in estate planning, trust law, and estate administration. He advises individuals, couples, and families in structuring their assets during their lives and for their beneficiaries. He also advises fiduciaries on the administration of estates and trusts as well as beneficiaries as to their rights. Cliff has experience planning and administering estates with complex assets, distribution schemes, and tax issues. He can be reached at firstname.lastname@example.org or 617.345.3286.