Judge Marilyn Milian of television’s The People’s Court is well-known for proclaiming: “I wouldn’t believe you if you came in here with your tongue notarized.” As if such a physical interaction were ever possible, COVID-19 has rendered the thought of it not only gross, but dangerous. New York’s Gov. Andrew Cuomo’s recent executive order extinguishes the need for anything close to such an interaction, now permitting online/video notarization.
In order to deal with the spread of COVID-19 and the resulting social distancing, quarantining, and closing of businesses, the executive order — in effect until April 18, 2020 — allows notaries to acknowledge documents via audio-video conferencing. There are procedures set in place for this temporary allowance, including the signers being present in New York State, identification for the signer at the video meeting and direct interaction between the signer and the notary. The signer must email or fax the signed document directly to the notary on the same date it was signed. The notary may notarize the forwarded copy and she may repeat the notarization of the original signed document as of the date of the original execution when she receives the original signed document together with the electronically notarized copy within 30 days. This executive order is significant for several reasons. Unlike some other jurisdictions, New York does not generally permit online notarizations. Cuomo’s order will allow business transactions, real estate deals, and estate planning to proceed while citizens are heeding instructions to stay home.
Anyone who has ever attended a real estate closing can attest to the series of documents requiring notary acknowledgments for the several individuals usually all seated around the table. For estate planning, video notarization has significant effects as well. Documents that require notaries include powers of attorney, health care proxies and trusts. Last wills require witnesses, however, the affidavits of attesting witnesses to the last wills require a notary, when signed. During this time, when we are anchored at home, having the ability to take care of our personal affairs without jeopardizing our own health by traveling to meetings or offices, is helpful if not necessary.
New York’s parlay into video notarizing, albeit temporary, could indicate changes for the future. Several states already use online notaries and online document execution platforms. Some states have also transitioned into electronic wills, signing the documents online with a notary and witnesses present. For example, Florida recently passed the Electronic Documents Act. Nevada and Indiana already permit electronic wills.
In recent years there has been a movement to depend less on in-person last will executions in favor of online video ceremonies. The Uniform Law Commission is a nonprofit association that has established the Uniform Electronic Wills Act which endorses the execution of electronic wills. The plan is for legislation to allow a testator to execute his last will and testament using an online notary, witnesses who may not be present in the same location, and encrypted technology.
As we continue our efforts to stay safe in our homes, let us embrace all that technology has to offer. It keeps us connected and informed, and it also permits the continuance of our businesses and personal dealings. One of the United States’ most famous authors — Mark Twain (aka Samuel Clemens) — was also a notary. He became a notary in Nevada in 1864. Twain’s words always resonate, but in these uncertain times his wise advice is especially palpable: “Don’t wait. The time will never be just right.”
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.