Understanding Remote Notarization During the Pandemic

June 26, 2020

During this time of social distancing, estate planners have had to get creative about how to manage the execution of estate planning documents while keeping safe. Like many other states, Pennsylvania has adjusted regulations regarding some aspects of document execution. One notable example is the expansion of remote online notarization.

What is Remote Online Notarization?

Remote online notarization is the practice of a certified Notary Public signing off on the execution of a legal document with the use of state-approved electronic tools and applications. Many executions of legal documents usually require in-person witness and notary services, but some of the requirements have been relaxed in light of the social distancing guidelines put in place to stem the advance of the coronavirus pandemic. Several uses for notary services have been accommodated by the changes, but the new rules come with some restrictions.

What Changed in Notarization?

Online notarization has been legally acceptable in Pennsylvania for more than 20 years, but up until the coronavirus pandemic, it was not permissible for it to be used remotely. According to Pennsylvania law, a Notary Public must observe a signing in person in order for it to be legally satisfactory.

Prior to the coronavirus emergency, Pennsylvania allowed online notarization in many instances under the Pennsylvania Electronic Transactions Act (PETA). Online notarization had been allowed for documents filed electronically, but all transactions were still required to be witnessed and notarized in person. The use of electronic signatures simply streamlined the online filing process.

During the coronavirus-induced state of emergency, Governor Tom Wolf signed an order that allows online notarization to take place remotely for some transactions.

However, the initial authorization left out many estate planning pursuits. In fact, the first expansion of remote online notarization focused only on business and government documents, overlooking the matter of non-transaction legal documents, such as wills and powers of attorney. Soon after, a new order came defining the use of remote online notarization in estate planning.

What Makes Estate Planning Documents Different?

When the PETA regulations were first put in place in 1999, they focused on electronic transactions for commercial or government purposes.

Estate planning documents by contrast are considered personal documents. It’s not considered transactional, these documents do not involve two parties. More importantly, electronic wills were not acceptable in Pennsylvania. The PETA law, having been designed for use exclusively with electronic documents, would have never included estate documents that were required to be recorded using physical documents.

What Has the Pandemic-Related Order Changed Regarding Estate Planning Notarization?

In April, Pennsylvania began to allow certain estate planning documents to be notarized using remote online notarization, bypassing the physical presence requirement for the duration of the coronavirus emergency. The suspension of this requirement, which is outlined in the Revised Uniform Law on Notarial Acts, is a temporary solution to address social distancing recommendations. These changes are set to expire 60 days after the COVID-19 disaster emergency order ends in Pennsylvania.

What Types of Estate Planning Documents Are Affected by the Changes?

The estate planning documents outlined by the Pennsylvania Department of State include specific types of estate planning documents that require notarization as well as a few additional types of estate planning documents for which notarization is recommended, but not required. Documents that require notarization include:

  • Powers of attorney
  • Self-executing wills
  • Trusts that hold real property
  • Temporary guardianships

Documents that do not require notarization, but for which notarization is considered best practice are:

  • Advance health care directives
  • Health care powers of attorney
  • Living wills
  • Wills that require two witnesses for probate
  • Trusts that do not hold real property
  • Standby and temporary guardianships

What Are the New Rules Regarding Notarization of These Documents?

The emergency order outlines the requirements by indicating that for each of the document types, notaries may use electronic online communications to conduct their business if it adheres to the following stipulations:

  • The notary must be approved by the state to become an electronic notary.
  • The e-notary solution used to conduct the notarization must be approved by the state, many popular conferencing software and meeting apps are not approved.
  • The fact that the notarial act was conducted remotely, using such technology must be noted in the documentation.

Additionally, the notary must adhere to the conditions laid out in the Revised Uniform Law on Notarial Acts and honor the safeguards presented in active or pending remote notarization legislation in Pennsylvania.

Though observing the document enactment may be performed remotely, the notary must physically be in the state of Pennsylvania at the time of the notarization.

What Are the Requirements for a Notary to Put in Place in Order to Notarize Remotely?

The communication technology requirements instruct that the system must allow for a simultaneous audio and video feed while making reasonable accommodations for any user’s impairment or disability.

The notary must verify the identity of the persons involved by way of personal knowledge, witness confirmation, or the employment of two or more identification confirmation services.

The notary must use tamper-proof technology to identify that the documentation to be notarized is the same that the remote individual is signing.

The interaction and the notary action must be recorded. The audio-visual recording must be retained for a minimum of 10 years.

If you are requiring a document to be notarized during this time, it is beneficial to speak to a knowledgeable lawyer about your plans and options.

Media Wills and Estates Lawyers at Eckell Sparks Offer Assistance with Estate Planning Fundamentals During the Coronavirus Crisis

In this stressful and uncertain time, it can bring substantial comfort to know that your affairs are in order. Our Media wills and estate lawyers at Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C. will help you secure your estate planning needs. For a free consultation, contact us online or call us at 610-565-3701. Located in Media and West Chester, Pennsylvania, we serve clients throughout Delaware County, Chester County, and Montgomery County.