One important aspect of practicing law – witnessing and notarizing documents – has been dramatically and perhaps permanently changed by the pandemic.
Most states have passed emergency measures allowing virtual signings and notarizations. Some will remain in effect even after the health crisis has passed.
“Prior to the pandemic, clients, notaries and witnesses were generally required to be in the same room—or within sight of one another—during the signing of documents,” writes Amanda Robert for the ABA Journal. “As of mid-April, the majority of states have attempted to overcome this obstacle by issuing emergency orders authorizing the use of remote electronic notarization and/or witnessing. This has become increasingly vital as the CDC warns that individuals who are age 65 or older and have underlying medical conditions are at higher risk for developing more severe cases of COVID-19.”
Want to know where your state stands on the issue? Click here for a state-by-state breakdown prepared by the American College of Trust and Estate Counsel (ACTEC).
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The New Normal?
Virtual notarization has been a growing trend for almost a decade. In 2011, Virginia become the first state to allow it, followed by Montana, Nevada and Texas.
“Even before the coronavirus, an increasing number of states permitted remote electronic notarization, with 23 passing laws in recent years,” according to the ABA Journal.
In 2018, the National Association of Secretaries of State (NASS) adopted standards for electronic notarizations in 2018. Click here for the Remote Electronic Notarization page on the NASS website.
The issue is a pressing concern for lawyers in trust, estates and real property practices, especially in cases involving clients aged 65 or older. Many firms are using the cloud-based e-signature platform DocVerify, which has a feature that allows video chats.
Here is the procedure followed by one trust and estates firm featured in the ABA Journal article:
- The firm uses DocVerify to meet virtually with clients who are ready to sign their estate plans.
- The attorney – along with two witnesses and a notary – is in the firm’s conference room. The client is at home.
- Although the software requires all parties to authenticate their identities, the attorney goes a step further by asking clients to show two forms of identification over the camera.
- The attorney observes as the client signs the documents electronically.
- The attorney signs electronically.
- The entire process is recorded for preservation and future reference.
Free Resources Available
The ABA Real Property, Trust and Estate Law Section has added a wealth of information, checklists and resources to its website, including Sample Acknowledgements, state-specific guidance and the ACTEC state-by-state breakdown.
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