Executive Orders Authorize Remote Notarization of Legal Documents and Remote Witnessing of Estate Planning Documents

April 14, 2020 Executive Orders Authorize Remote Notarization of Legal Documents and Remote Witnessing of Estate Planning Documents

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KEEPING YOU INFORMED…

As part of the State’s ongoing efforts to combat the effects of COVID-19, Governor Cuomo signed Executive Orders 202.7 and 202.14. These Orders contain provisions permitting both the remote notarization and the remote witnessing of various estate planning and other legal documents. Together, these Orders provide powerful tools during the pandemic to allow individuals to properly execute critical legal documents, including Wills, Trusts, Powers of Attorney, Health Care Proxies, Deeds and disposition of remains instruments, from the safety of their homes and without anyone else being physically present, provided that all of the rules outlined below are followed.

Executive Order 202.7

Executive Order 202.7 temporarily modifies legislation governing the services of Notaries Public by permitting notarial acts to be conducted using audio-video technology, i.e., by video conference, provided that the following conditions are met:

        • The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
        • The video conference must allow for direct interaction between the person and the Notary (g., no pre-recorded videos of the person signing);
        • The person must affirmatively represent that he or she is physically situated in the State of New York;
        • The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
        • The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
        • The Notary may repeat the notarization of the original signed document as of the date of execution, provided that the Notary receives the original signed document together with the electronically notarized copy within thirty days after the date of execution.

The modification of current law to allow for remote notarization is now set to expire on May 7, 2020 as Executive Order 202.14 has extended the original April 18 expiration date.

Executive Order 202.14

Through May 7, 2020, Executive Order 202.14 expressly permits the act of witnessing required for Wills, Trusts, Powers of Attorney, Health Care Proxies, Deeds, and disposition of remains instruments, to be performed remotely using audio-visual technology. The Order, therefore, temporarily suspends the “presence” requirement typically required for witnessing such documents, but only if the following conditions are adhered to:

      • The person requesting that his or her signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
      • The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (g., no pre-recorded videos of the person signing);
      • The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
      • The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
      • The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution, provided that the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

Please contact Jeff Zankel, Steve Godsberg, Patricia Delaney, Diane Moffet or one of our other attorneys at the direct dial numbers or e-mail addresses indicated on the contact information page attached to this memorandum if you have any questions regarding the implementation of the above outlined provisions of Executive Orders 202.7 and 202.14, or need assistance with preparing documents or executing and witnessing documents remotely.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2020

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