Editor's Note: April 23rd, the Massachusetts legislature (finally) passed a bill to permit remote notarization and witnessing of legal documents during the coronavirus pandemic—the 45th of the 50 states to take this step. It didn’t happen without a bit of last minute drama. The Senate passed its bill on Tuesday, April 21st. On Thursday, the House passed a similar bill, but added the requirement that all remote document execution sessions be recorded and the recording saved for 10 years. Fortunately, the Senate then quickly approved the House’s version of the bill. Now we just await Gov. Baker’s signature.
Since the beginning of the coronavirus pandemic, a bill to allow online notarization and witnessing of documents during the shutdown has been wending its slow way through the Massachusetts legislature. It was first slowed down by different constituencies seeking tweaks in the law. The first proposal only permitted attorneys and paralegals to do online notarizations, but a revised bill expands this to non-attorney or paralegal notaries. As reported in The Boston Globe, it has the support of a wide constituency, including lawyers, the real estate industry, and investment companies, such as Fidelity. But still the bill languishes.
As a result, estate planning, real estate transactions, and other forms of business languish or are forced into inefficient work arounds to get the job done. We've described some of our efforts in previous blog posts. Others are described in this article in The Boston Globe.
Forty-four other states now allow online notarization, whether by legislation or executive order and whether permanently or for the duration of the pandemic. (My mother has recalled that when she was a child during World War II, she kept hearing the words "for the duration." Gas rationing was in place "for the duration," as were lots of other policies and restrictions.) If our legislature can't get its act together, perhaps Gov. Charlie Baker can step in with an executive order.
Call to Action
Fortunately, we live in a democracy (though according to the The Economist's Democracy Index, it's a flawed democracy), and our elected officials do respond to outcries from their constituents. Please call or email your legislators and ask them to enact the pending remote notarization bill.
You can find your state representative and senator here.
And e-mail Gov. Baker here.
Ask why Massachusetts is one of the last six states in the country to take this step. The American College of Trusts and Estates Counsel (ACTEC) recommends using the following language:
I'm calling/writing to ask you to enact S2645 this week to allow remote witnessing and notarization during the COVID state of emergency. S2645 would allow probate and estate planning attorneys to conduct will signings remotely, by videoconference. We need this emergency relief urgently to help our clients sign their wills and other essential estate planning documents when they are sick and quarantined. Every other state in New England has allowed remote notarization during this crisis. In fact, 42 states and the District of Columbia have acted to authorize some form of remote notarization during the COVID emergency. Please enact S2645 today to allow remote witnessing and notarization in Massachusetts.
Why Not Make it Permanent?
While the pandemic makes remote notarization necessary for the health and safety of Massachusetts residents, there's no good reason it shouldn't be permanent. National standards already exist for doing so. It would help bring Massachusetts into the 21st century as more and more of our lives occur online. It would facilitate many transactions and even help the environment—fewer drives to lawyers' offices or the registry of deeds.
Interestingly, our Boston office is in a building that also houses the online notarization company Notarize.com. While our legislature may be slow, our entrepreneurs our moving ahead. While at the moment, Notarize.com can't notarize in Massachusetts, the fact that it's here and 44 other states do allow online notarization raises the following question:
Can We Use Out-of-State Notaries to Notarize Massachusetts Documents?
It's not unusual to send documents to clients and others who are out-of-state temporarily or permanently to be executed and notarized in other states. If the notarizations are valid in the other state, they will be honored in Massachusetts. If such states permit online notarization, then such online notarizations also will be honored in Massachusetts, despite the lack of similar legislation here.
So, why can't we use an out-of-state virtual notary from Massachusetts? Without doing extensive research on this, my concern is that while the notarization in the other state may be online, that state's legislation is still meant to apply only to document executions occurring in that state. It's safer to wait until we catch up in Massachusetts.