During this time of worldwide uncertainty, many of us are facing huge portions of our lives suddenly being moved online. Telecommuting has proven that we can do plenty of our daily activities from home—but there are still limitations. Historically, the signing and notarization of estate planning documents is not something that can be done without all participants sitting together at a table with the physical documents between them. In many places and for many kinds of documents, this is still true, but remote online notarization is a practice that is gaining more recognition.
In New York, Governor Cuomo recently signed an executive order amidst coronavirus precautions allowing the use of remote online notarization statewide; this is an unprecedented usage of executive orders.1 Some have called for guidance from the highest state courts regarding this action, seeking assurance that the order will be allowed to stand before its validity is confirmed. At the same time, other states are considering the option to take similar measures in order to respond to the spread of coronavirus worldwide—these orders may have even been signed by the time of this reading.
For a few weeks, New Jersey lagged behind many states who had already jumped on the bandwagon. Both houses of the New Jersey state legislature debated whether “certain notarial acts” could be performed remotely since mid-March, but it took until nearly a month later for an Act to be signed into law. On April 14, Governor Murphy signed a bill into law that allows for certain kinds of remote notarization during the Public Health Emergency and State of Emergency declared by the governor in Executive Order 103 of 2020.2 Frustratingly, this Act excludes the signing of wills and codicils. However, it is at least applicable for matters such as the creation of HIPAA waivers, healthcare directives, and powers of attorney.3 Firms have developed creative strategies to sign estate planning documents during the past month of waiting to hear whether the bill would pass; now that we have a path forward, we can use remote online notarization in conjunction with these strategies to ensure that we continue to serve our clients’ needs without face to face conference room type meetings.
Overall, 23 states have approved remote online notarization in some capacity, though the requirements and breadth of this ability differ from state to state. Efforts are underway to establish federally recognized remote online notarization.4 The SECURE Notarization Act is a proposed bill in the Senate that aims to do exactly that, legalizing remote online notarizations nationwide—possibly immediately, should it be passed. Currently, the text of the bill is not available, but a summary of the bill indicates that it will provide minimum security standards for the usage of remote online notarization as well as provide certainty for recognition of online notarization between states. States would continue to have the flexibility to implement their own remote online notarization standards above the federal baseline.
As with many other things during the unfolding COVID-19 outbreak, the status of New Jersey’s remote online notarization is still uncertain as the situation continues to unfold. If you are concerned about how best to get your documents executed within the state during this time, the best thing you can do is speak to a specialized estate planning attorney who you can trust to evaluate your options and explain what options may potentially be on the way in the coming days to look out for. Here at Rao Legal Group, LLC (“RLG”) we are utilizing phone calls and video conferences to continue to provide our clients with the outstanding service we are known for while keeping the distance necessary to protect our communities. We are available to help you—call us today to learn more about how we can help you prepare for the future at a time when it’s more important than ever to do so.