Remote Notarization

Letter from the Chair

Jo-Ann M. Marzullo, Section Chair, Real Property, Trust & Estate Law

Jo-Ann M. Marzullo

Jo-Ann M. Marzullo

Section Chair, Real Property, Trust & Estate Law

To My Fellow RPTE Members:

I write to let you know about some of the ways that our Section is endeavoring to help you during the COVID-19 pandemic.  This pandemic has already touched all of us, both personally and professionally, and many of us are adapting to working from home, remotely, and trying to provide the best possible service for our clients under the circumstances. 

I. Member Benefit Webinars

A webinar on Business Interruption Coverage was held on April 2, 2020. This webinar will be available for viewing on demand after it is presented live by RPTE members.
Another webinar on Force Majeure is being prepared, so check back for further information on this.

II. Remote Notarization and Witnessing

In many parts of the country, in-person business meetings are proscribed, making it difficult to conduct real estate transfers and financings, to supervise will, health care, and estate planning proxy executions, and to ensure the proper execution of other legal documents that require witnesses and notarizations.  Notarizations and witnessing are critical for both real property and trust and estate practitioners, and if they are unavailable, our efforts to provide services to our clients can become impossible.  Stay-at-home or business curtailment orders mean that notarizations from regular sources, such as in-person closings at law firms or other business locations, banks, and business service providers may be extremely difficult to obtain.  Worse, notarizations for those under strict quarantine, or in a hospital, or a nursing home are likely impossible to obtain

Some states adopted before the pandemic to allow for so-called remote notarizations and witnessing (collectively called for this note "RONs") and some states have taken actions to permit RONs, but in many instances the mandatory process requires utilization of a third party vendor as a part of the actual execution. Some attorneys are reluctant to use the tech companies providing remote notarization services due to concerns about data mining and disclosure of documents outside of the attorney client privilege before the transaction is part of the public record.  Proof of identity and record retention required under other remote notarization statutes cause third party tech companies to have personal information and the contents of the legal documents themselves. The ethical implications of attorneys using third party notarization platforms are not yet well-understood, which further causes attorneys to be leery of using such platforms.

The Executive Committee of RPTE believes that a simple method for RONs should be allowed during this pandemic and since state law controls in most instances, RPTE has sought authority within the rules and procedures of the ABA to send a letter to all governors advocating for such simple method during this time of crisis.  The states to which the letters were sent are listed at the end of this message. The letter was also sent to the National Conference of State Legislatures and the National Governors Association

If you feel that your practice would be aided by a simple method of RONs, then I urge you to make your position known.

There are several examples of simple remote notarization executive orders that have been issued or are proposed for remote notarization. Here are some useful links:

Arkansas - www.americanbar.org/content/dam/aba/administrative/real_property_trust_estate/remote-notarization/ak-remote-notarization-eo-20-12.pdf

Iowa - https://governor.iowa.gov/press-release/gov-reynolds-signs-new-proclamation-continuing-state-public-health-emergency

Massachusetts - malegislature.gov/Bills/191/SD2882

New York - www.governor.ny.gov/news/no-2027-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

Some federal legislation has been introduced regarding RONs, see www.congress.gov/bill/116th-congress/senate-bill/3533/all-info    

The pending federal legislation, however, would not be temporary and could affect our practices beyond this crisis.

Our RPTE members will have legitimate differences over the specifics of the state and federal measures.  As individual practitioners, we can and should make our thoughtful comments heard.  RPTE's mission is to ensure that you are as fully-informed about all RON developments in order to form your own opinion on the topic, and then to help in shaping effective governmental action at both the federal and the state levels.

We will endeavor to post here as much information as we can as matters develop.  However, in order to do so, we need to hear from you:  please send me at jmarzullo@ligris.com any useful information about your state or local RON efforts, or other issues critical to real property and trust and estate attorneys so that we can ensure it is posted for all to see.

Thank you for this, and above all, thank you for being a part of our national conversation on this topic.  Most of all, thank you for continuing to serve your clients' needs as effectively as possible during this time of pandemic crisis.  May our country and world soon recover from this terrible virus, and in the meantime, please stay safe, and stay well

Jo-Ann Marzullo

State to which letter was sent:

  • Alaska
  • Arizona
  • Connecticut
  • Delaware
  • District of Columbia (sent to the Mayor)
  • Georgia
  • Hawaii
  • Idaho
  • Indiana
  • Kansas
  • Massachusetts
  • Mississippi
  • Montana
  • Nevada
  • New Jersey
  • New Mexico
  • Oklahoma
  • Pennsylvania
  • Utah
  • Vermont
  • Washington
  • Wyoming