Massachusetts Governor Charlie Baker has signed a new law, effective immediately, that suspends the physical presence requirements for the notarization of legal documents until three days after the current State of Emergency declared in the Commonwealth has been lifted. Under the new law, notarial acts pertaining to estate planning require that the notary public be an attorney licensed to practice in Massachusetts or a paralegal under the direct supervision of such an attorney.
The new law is outlined in Chapter 71 of the Acts of 2020, which was signed by Governor Baker on April 27, 2020, in response to the COVID-19 outbreak, and the corresponding State of Emergency declared in the Commonwealth on March 10, 2020.
A Massachusetts notary public may now perform an act of acknowledgement, affirmation or other notarial act utilizing one real time electronic video conference. If the notary public adheres to the following rules, a document will be deemed to have been properly executed, acknowledged and notarized during the video conference:
- The notary public must create an audio and video recording of the performance of the notarial act and retain the recording for 10 years.
- The notary public and each principal must be physically located in Massachusetts. A “principal” is a person signing a document as a maker of the document (e.g., a person executing his or her will) or a witness to the signing of the document.
- The notary public must observe each principal’s execution of the document.
- During the video conference each principal must swear or affirm that they are physically located in Massachusetts and make disclosure of the identity and relationship of any person present in the room with the principal and make that person viewable to the notary public.
- The principal must provide the notary with satisfactory evidence of his or her identity. If identification is not based on personal knowledge, the notary public may rely on a government issued ID. The ID must be current and issued by a federal or state government agency and bear a photographic image of the principal’s face and signature. If identification is based on a government issued ID, the principal must show the front and back of the ID to the notary public. The principal must provide a copy of the ID to the notary public either with the signed document or separately through electronic means.
- Each principal must make the acknowledgement, affirmation or other act to the notary public as appropriate.
- The notary public must complete a notarial certificate during the video conference which recites the date of the video conference, that the document was notarized remotely pursuant to the Act, and the county in which the notary public was physically present during the videoconference.
- Each principal must deliver the document they have signed and, if applicable, a copy of their ID to the notary public in accordance with the notary public’s instructions.
- Upon receipt of all of the executed documents, the notary public must execute an affidavit under the penalty of perjury that the notary public has (i) received a copy of each principal’s identification credential and visually inspected it during the initial video conference with the principal, if applicable; (ii) obtained each principal’s verbal assent to the recording of the video conference; (iii) taken each principal’s affirmation as to the principal’s physical presence within Massachusetts; and (iv) been informed of and noted on the affidavit any person present in the room with the principal during the signing and the relationship between such person and the principal. Although the intent of the law is that the documents be effective upon execution during the video conference and merely completed when the notary public has executed the affidavit, the law was not drafted clearly and thus we recommend that the original documents be delivered to the notary public, and the affidavit signed, as quickly as possible.
- The affidavit must be retained for 10 years by the notary public. A copy of any ID must be retained for a period of 10 years by the notary public, who shall keep it secure and confidential in accordance with state and federal law.
- If the notary public is a paralegal, the supervising attorney shall retain the copy of the principal’s ID, the audio and video recording and the notary public’s affidavit for 10 years.
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Mary-Kathleen O'ConnellPartnerChair, Trusts + Estate Planning
Susan L. AbbottPartner
Eric P. HayesCounsel