Last week, the Massachusetts legislature (finally) passed legislation permitting the remote notarization and witnessing of legal documents during the pandemic—the 45th of 50 states to take this step, and Governor Baker signed the bill into law on Monday, April 27th.
While we can now execute wills and other documents remotely, the legislation doesn't make it easy. Here are its main provisions and requirements:
- The law only lasts until three days after the end of the state of emergency, which is now May 18th.
- Only attorneys and paralegals under their supervision may notarize estate planning documents: wills, trusts, durable powers of attorney, and HIPAA releases.
- There must be two video conferences for deeds and other documents to be recorded at the registry of deeds—the first one for their execution and the second one to confirm that the documents signed and sent to the notary are the same ones signed in the original session.
- All remote notarization sessions must be recorded and the recording saved for 10 years.
- The notary must sign a supplemental affidavit verifying a number of facts, including that the person signing the documents and all the witnesses were in Massachusetts.
- The notarization is not effective until the notary receives and compiles all original signature pages, notarizes the document, and completes supplemental affidavit.
With all these additional rules, it may be easier in many cases simply to wait until the shutdown ends and we can again do in-person notarizations and witnessing. At least this will be useful for those situations where we cannot wait or if the state of emergency lasts several months, which is certainly possible.
For us, the law raises two important questions:
First, why is it temporary? With so many safeguards in place, why not make it permanent?
Second, why does everyone have to be in Massachusetts? We often have clients who are traveling or wintering in other states who need to execute estate planning documents. This has been extended during the pandemic with retirees staying in Florida and other southern states until life gets back closer to normal up north.