Reprinted with permission from Probate & Property, Volume 34, Number 4, July/August 2020, at 6-8. ©2020 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The COVID-19 pandemic and resulting shutdown of non-essential economic activity greatly affected the practice of law in the United States, as courts adjusted their calendars and attorneys transitioned to working remotely from home. Before the pandemic, some attorneys regularly used videoconferencing and electronic signatures, but this year even reluctant adopters of the technology were forced to adapt and incorporate it into their practices.
Two matters of particular interest to RPTE members proved to be especially challenging in the remote working environment: the notarization of documents and the execution of wills. Both are subject to state laws that typically require a personal appearance by the signatory and any witnesses. Earlier this year, governors in several states issued executive orders temporarily suspending provisions of their state’s laws that required personal appearance. Without this action, the social-distancing restrictions put in place to prevent the spread of the COVID-19 virus would have delayed or prevented the execution of many documents.
The emergency orders demonstrate the need for a more permanent solution and prove the feasibility of technology-based remote transactions. Legislatures in every state are now reviewing their statutes and preparing to authorize secure, remote notarization and execution of wills. Fortunately, the Uniform Law Commission (ULC) foresaw the need to modernize these statutes and has approved uniform acts to address both issues.
Even before the pandemic forced the issue, states were moving toward allowing the remote electronic notarization of documents. Driven in large part by the real estate industry to facilitate closings when the parties are not in the same location, over 20 states updated their laws to allow licensed notaries to verify a person’s identity and acknowledge a signature remotely. The pandemic has served to accelerate this trend as more attorneys and their clients are forced to use the novel procedure while stay-at-home orders preclude meeting in person.
The latest version of the Revised Uniform Law on Notarial Acts (RULONA) approved in 2018 allows notaries licensed in the adopting state to perform remote online notarization under the following conditions:
- The notary must notify the state’s commissioning officer or agency of the intent to provide notarization services to remote individuals and conform to any standards issued by the commission.
- The notary must employ technology that allows real-time audio and visual communication with the remotely located individual.
- The notary must be able to confirm the identity of the remotely located individual either by personal knowledge, by oath or affirmation of a credible witness, or by using at least two forms of identity-proofing.
- The notary must record the notarial act and maintain a copy of the recording for 10 years.
- The notarized document must include an electronic seal and a statement that the notarial act involved the use of communication technology.
Because technology evolves rapidly, RULONA is drafted using neutral language so that the legislature will not need to update the law with every new technological advance. Instead, the commissioning agency (in most states, the Secretary of State) can set standards through the regulatory process to ensure the security of remote notarial acts. For example, the agency may require the storage of notarized documents in a particular tamper-evident file format and may approve certain methods of online identity proofing that have proven reliable, such as the use of biometric data or the verification of data from credit reports likely to be known only by the remotely-located individual.
Finally, to ensure the notarial act is valid and enforceable, RULONA includes special rules for notarial acts involving individuals located in foreign countries. The act must relate to an entity subject to the jurisdiction of the United States or involve a transaction substantially connected to the United States, and the law of the country where the individual is located must not prohibit the notarial act.
Many companies are already providing remote online notarization. As the number of people demanding the service increases, more notaries will undoubtedly begin to offer remote online notarization in accordance with state laws based on RULONA.
Online contracts and commercial transactions have been authorized for many years under state laws based on the Uniform Electronic Transactions Act (1999), enacted in all but a few states, and under the federal Electronic Signatures in Global and National Commerce Act (E-sign Act), passed in 2000. But both acts contain an express exemption for wills, which traditionally require a written document signed by the testator and two witnesses. Wills were originally exempted because of special concerns about the validation of an electronic will after the death of the testator, but a lot has changed in the twenty years since these early laws authorizing electronic transactions were drafted.
For one thing, reliable security procedures for electronic documents have alleviated many of the concerns about post-execution tampering. Though no security protocol is 100 percent effective, electronic wills in many ways are more secure than their traditional paper counterparts. More importantly, client expectations have changed so that younger clients, in particular, expect to conduct their estate planning online and are frequently surprised to learn that paper documents and signing ceremonies with witnesses are still required.
The Uniform Electronic Wills Act (E-Wills Act), approved by the ULC in July 2019, became available for consideration by state legislatures shortly before the pandemic struck. Some trust and estate attorneys who initially opposed online estate planning because of concerns that large, national firms would dominate the market and draw away potential clients were forced by the circumstances to reevaluate. Although the laws of most states already allowed the electronic execution of trusts and powers of attorney, wills are still part of every estate plan. It became apparent during the pandemic that enacting the E-Wills Act benefits attorneys who are prevented from meeting with clients in-person to execute their documents.
The E-Wills Act updates the traditional statute of wills for the internet age but otherwise breaks no new legal ground. Electronic wills are authorized under the law and given equal status with traditional paper wills. An e-will must be readable as text at the time of execution by the testator— audio or video recordings are not admissible for probate. The act still requires two individuals to witness the testator’s execution and allows the enacting state to decide whether the witnesses must be physically present with the testator, or whether remote witnessing via real-time audio-visual communication is permissible. The act also offers an optional provision to facilitate electronic wills for the few states that currently allow wills to be notarized rather than witnessed.
Drafting the rules for revocation of an electronic will has proven to be challenging. A testator may revoke a paper will by physical act, such as tearing or burning the document. But with an electronic will, there may be multiple, identical copies of the document file, and one may never be certain that all copies were destroyed. The E-Wills Act allows revocation by two methods. A testator may make a subsequent will that revokes the electronic will expressly or by implication, and a testator’s physical act accomplishes revocation with proof by a preponderance of the evidence that the testator performed the act (or directed another person to do so) with the intent of revocation. Examples of physical acts include clicking a mouse to delete the file or more extreme measures such as smashing a hard drive where the file is saved. Probate courts are well-suited to decide questions of fact, just as they do for questions involving paper wills.
Finally, the E-Wills Act allows a testator to create a self-proving electronic will by including notarized statements by the testator and witnesses verifying the testator’s intent, capacity, and the lack of undue influence or coercion. A notary must acknowledge the statements contemporaneously with the execution by the testator and witnesses. If a state permits remote online notarization under RULONA or a similar law, wills are treated like other documents and may be notarized remotely in accordance with the state’s specific requirements.
The ULC began drafting both RULONA and the E-Wills Act in anticipation of the need to modernize outdated state laws to allow online services. The recent pandemic serves to illustrate the pressing need for these updates and has generated significant interest in the uniform acts from practitioners and legislatures seeking to address the issue. Both uniform acts are drafted to work in concert and can be combined into a single bill. RPTE members in every state are encouraged to review their current statutes governing the execution of wills and notarization and consider whether adopting RULONA and the E-Wills Act would improve the current law.
Originally published in Probate & Property, Probate & Property, Volume 34, Number 4, July/August 2020, at 6-8; reprinted in GPSolo eReport, Volume 9, Number 12, July 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association Real Property, Trust and Estate Law Section or the Solo, Small Firm and General Practice Division.