Recall the times you have seen someone signing their last will and testament on TV or in a movie. It’s usually a solemn occasion with everyone gathered around a lawyer’s conference table, including the person signing the will, lawyers, several witnesses, and even a notary public (a licensed official who certifies that the people signing the document are who they say they are).
Jump ahead to these sections:
- What is Remote Online Notarization?
- When is Remote Online Notarization Necessary?
- How Online or Remote Notarization Works
- Where are Notaries Allowed to Sign Remotely?
- What are the Concerns with Remote Notarization?
The testator would sign the document, then the witnesses, and then the notary. All of this had to occur in the same place and at the same time for the will to be valid. It can make for some dramatic television when there are high financial stakes.
However, some states are deciding to go the digital route, and have decided that this gathering of all parties in one room is no longer necessary to validate a will. Instead, these states have opted to allow “remote online notarization,” also known as “RON.” In order to streamline the validity of these documents, RON may soon be the norm.
What is Remote Online Notarization?
As the name suggests, remote online notarization (“RON”) is simply online notarization that takes place remotely. RON may be distinguished from another form of notarization that takes place online called “electronic notarization” or “e-notarization.”
E-notarization follows all the normal procedures for notarizing a document. However, e-notarization allows the notary to authenticate the signatures of the parties by having them physically present in the room to perform electronic signatures. This means that the will isn't written on paper, nor are the signatures written with ink. Instead, the will is drafted online and the parties’ signatures are electronically inscribed on the document.
In 2000, some states began to allow notaries to perform electronic signatures for certain notarizations. This allowed notaries to certify business documents and transmit them to parties electronically. However, parties were still required to be present with the notary when signing.
RON also follows all the traditional requirements for wills, however, all the parties sign the document remotely, which means that they aren't physically present together in one room. Instead, the signing parties may be in separate locations. The notarization takes place through a two-way audio-visual recording between the notary and the signer.
When is Remote Online Notarization Necessary?
Remote online notarization was derived mostly for convenience. While traditional wills were required to be on paper, they still required the testator and the witnesses to be present in front of the notary to physically observe the parties and authenticate their signatures.
For many, the timing and travel required to perform a traditional notarization can be burdensome. It may even prevent someone from signing their will if they pass away before the notarization can be arranged and everyone can be gathered together at the same time.
RON is most useful for parties who aren't able to travel to another location to sign or witness a will. This may include someone who is:
- In a hospital
- Restricted to a nursing home
- In another country or distant location
RON is necessary any time the traditional method of notarization can be difficult or inconvenient.
There's no better example of the need for RON than the circumstances resulting from the COVID-19 pandemic. With social distancing and “stay-at-home” restrictions, signing a will in the physical presence of others is not reasonably possible.
However, in states that provide for RON, testators, and witnesses can sign a will and have the will notarized without any of the parties ever leaving their homes.
How Online or Remote Notarization Works
As mentioned above, while RON enables everyone to sign a document from home, there are certain standards that must be followed. The requirements are as follows:
- Communication must be simultaneous. Although parties can be in different locations when signing the will, they must be able to see, hear, and communicate with each other during the signing.
- The RON must be recorded. The signature session must be recorded safely and securely.
- The notary must be present in the state. Typical standards require that the notary be present in the state, however some states require that the testator and the witnesses be present in the state as well.
- Witnesses must see the signatures. Each page of the document must be signed or initialed and the witnesses must be able to see each page clearly.
- The notary must fully certify the RON. The RON must include the notary’s signature, seal, title and commission, and the commission’s expiration date. If the notary does not know the signer, the notary must confirm the signer's identity with a copy of a driver’s license or passport.
- The RON recording must be preserved. When the session is recorded, a registered notarization software provider must safely and securely preserve the recording for a specified period of time (could range from three to 10 years). This time may vary depending on the applicable standards.
Each state adopting RON must have its own procedural requirements and standards.
Where are Notaries Allowed to Sign Remotely?
With the COVID-19 pandemic, every state—through executive orders decreed by the respective governors—has allowed remote notarization and/or remote witnessing (witnesses may witness a testator’s signature remotely). In most states, these are authorized only during the pandemic emergency and for a limited period of time, designated by governors for their specific states.
Before the COVID-19 pandemic struck, not every state recognized Remote Online Notarization.
The first states to implement this were:
- Virginia (2011)
- Montana (2015)
- Nevada (2017)
- Texas (2017)
In addition to the original four states, the following states have statutes that allow for Remote Online Notarization:
- South Dakota
- Washington, D.C.
Some states have RON statutes but do not yet have the required regulations or a registered technology provider:
- North Dakota
Other states have adopted RON statutes that have not yet become effective:
Several states are in the process of proposing legislation to adopt a RON statute, including:
- New Jersey
- South Carolina
However, just because your state authorizes RON doesn't mean that it's available for probate documents. Each state may have its own restrictions on when it can be used. In any state, RON could be limited to certain documents, such as:
- Deeds and real estate documents
- Notaries that work for attorneys
- Notaries present in the state
- Signers and witnesses present in the state
Many states require that estate planning documents be witnessed and notarized. With the onset of COVID-19, several states that previously excluded probate documents from their RON provisions.
As a result, these states have become more flexible and have expanded RON’s application to include wills and other probate documents, including:
- Self-proving affidavits
- Durable powers of attorney
- Medical powers of attorney
- Advance directives
- Oaths of executors and guardians
These expansions have occurred particularly if the testator is in a high-risk category for COVID-19. Regardless of whatever state you are in, consider speaking with an attorney to figure out if RON is permitted and what standards are required for the remote aspects of any notarization.
What are the Concerns with Remote Notarization?
Although several states have been using RON for several years, there are still concerns about its application and effectiveness.
Here are some things to consider before relying on remote notarization:
- Does RON apply to probate documents in your state?
- Is the RON statute in your state limited to certain notaries?
- Do you have to be present in the RON state when you sign? Does the notary?
- Does your state recognize remote online witnessing?
- Does the RON statute in your state allow for paper-and-ink signatures, e-signatures, or both?
Additionally, because remote notarization and witnessing requires an audio-visual recording that must be stored for an extended period of time, issues about security and confidentiality are a high priority.
Remote Online Notarization Is Changing the Estate Planning Process
Remote online notarization is a valuable development in the area of probate administration. As with any new technology, many questions can remain about its effectiveness and what is the best application of its use. With COVID-19, every state has been forced to consider a more practical way to execute legal documents when mobility and interaction between parties are restricted.
If Remote Online Notarization proves effective and convenient during situations like the pandemic, it quickly may become the standard protocol for executing wills and other estate planning documents. To be safe, you should talk to your attorney if you need to make any changes to your probate documents or wills and need remote notarization.
You can also draft your will online, either with an online will service or virtual consultation with an attorney. Here are your options below:
|Option||Price range||Best if you...||Get started|
|Basic estate planning attorney||
|Attorney who specializes in complex estates||