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WILL ONLINE (REMOTE) NOTARIZATIONS BECOME THE NEW “NORM”?

Italy and China have enforced strict curfews (much stricter than “shelter in place”) in recent months to “flatten the curve” of the coronavirus pandemic. As mentioned in our article “Pandemic Planning in Peril”, the signing of a Will in Texas is particularly difficult at this time since Texas has not passed a law permitting Wills to be signed by video (unlike some states). *SEE LAST PARAGRAPH -TEMPORARY ORDER AFTER THIS WAS ORIGINALLY PUBLISHED. However, there are many documents (i.e., trusts, powers of attorney, deeds, etc.) that simply need to be notarized. Although banks or financial institutions are an “essential business” and they will generally notarize documents other than Wills, many  (especially those of higher risk) do not want to take any risk of going to the financial institution given the present status of COVID-19 – and it is possible stricter restrictions (like Italy and China) than “shelter in place” could be implemented.

As a result, online notarization (a notarial act performed by means of two-way video conference technology that meets the standards under Texas law) could become in vogue. The Secretary of State of Texas has to authorize a notary to be an online notary. Qualifications to be an online notary include: (1) meeting the requirements to be a notary public, (2) paying an application fee and (3) electronically submitting a form to the Secretary of State.

Online notaries must:

  • keep a secure electronic record of electronic documents notarized using audio-video communication.
  • keep a recording of any video and audio conference that is the basis for satisfactory evidence of identity and notation of the type of identification presented as evidence in addition to acts normally required of notaries.
  • keep a notation in the electronic record regarding identification of the principal for the online notarial act.
  • take reasonable steps to (a) ensure the integrity, security and authenticity of online notarizations; (b) maintain a backup for the online notary’s electronic record; and (c) protect the backup record from unauthorized use.
  • keep the electronic record maintained for at least five years after the date of the transaction or proceeding.
  • keep the electronic record under the online notary’s exclusive control.
  • not permit another person to use the online notary’s electronic record.
  • notify an appropriate law enforcement agency and the Secretary of State of theft or vandalism of the online notary’s electronic record.
  • notify the Secretary of State of the loss or use of the electronic record by another person of the notary’s electronic record.

Notwithstanding the requirements set forth, online notarizations are likely to increase until the pandemic subsides.

*After this article was originally published, Governor Abbott signed a temporary order on April 8 that permits Wills (along with durable financial powers of attorney, medical powers of attorney, directive to physicians and oaths of guardians, executors and administrators) to be signed by those who are regular notaries to acknowledge and notarize by the use of two way video and audio technology. The notary must take appropriate steps to verify the signer’s identity (either they personally know  the signer or see a copy of their driver license, passport etc.) and the signer must then send a legible copy by fax or other electronic transmission of the signature to the notary. After verification and transmission of the signature, the notary may acknowledge the transmitted copy and send back to the signer by fax or by other electronic means. This temporary order is effective until the Disaster Order is lifted. It should be noted that Wills still need to be signed before 2 disinterested witnesses.     

If interested in learning more, consider attending our next free “Estate Planning Essentials” virtual workshop (on April 18, 2020) by calling us at (214) 720-0102 or sign up by clicking here. Our goal is to make it easy for you to attend from the comfort of wherever you reside. 

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