On Friday, March 27, 2020, Gov. Jared Polis issued an executive order suspending the requirement that a person physically appear before a notary public for the purpose of performing a notarization. The executive order expires in 30 days.
Previously, to obtain a notarization of any document a person had to physically appear before a notary public. During a time of social distancing, or where a person might be under quarantine, or actually infected with the Covid-19 virus, physical presence before a notary for the purpose of signing a document is challenging if not impossible. The Governor’s executive order, doing away with the need for physical presence before a notary public, eases the execution of wills in the current environment.
As a result of the executive order, the Colorado Secretary of State has issued temporary rules that (1) allow a notary to perform notarizations where a person appears remotely, by real-time audio and video communication, and (2) establish standards and processes necessary to allow remote notarizations. The temporary rules allow a notary to perform a remote notarization only if the remote person is located in the State of Colorado.
Under these rules the notary may perform a notarial act by means of audio-video communication, so long as the notary can verify the identity of the remotely located individual and any witnesses. Verification of identity can be made by personal knowledge of the remote individual, or by evidence of identity such as a remote presentation of a government issued identification containing a signature and photograph, like a drivers license. The notary must also verify that all persons involved in the remote notarization process are viewing the same document. The remote notarization process must be recorded and stored for a period of at least 10 years.
The notary’s acknowledgement must indicate that the notarial act was made using audio-video technology.
The actual contents of the audio-video recording must include the following a disclosure to the remotely located person of the recording, its intended storage (where and for how long), and the explicit consent of the remotely located person to the recording and its storage.
The notary must make a good faith effort to include the following information in the recording as well:
- A recitation at the beginning of the recording that includes the name of the notary, date and time of the notarial act, a description of the document(s) to which the notarization relates, the identity of the remotely located person and witnesses, and methods by which identities of persons will be determined;
- A declaration by the remotely located person that the actions taken before the notary are knowingly and voluntarily made.
If the identity of a person is established through the prior knowledge of the notary or any witness a statement as to how knowledge of identity came to be must be disclosed.
After any document is signed the remotely located person must be able to transmit a legible copy of the record by fax, e-mail or other electronic means directly to the notary on the same date the act took place. The notary must then notarize the electronically transmitted document when received, and must transmit that document back to the remotely located person. The ability of a remotely located person may be the most challenging part of these rules, as estate plan documents can be lengthy and the remotely located person may not have immediate access to the means with which to electronically transmit a document to the notary.
Finally, if the notarized document is a will the original will must be delivered to the notary within 15 days. Within 3 days of receipt the notary must confirm the will received is identical to the will remotely notarized, and must affix the notary’s signature and seal on to the original signed will.
Unlike many areas of the law where electronic signatures and notarizations have been accepted for quite some time, the execution of wills does not allow for the electronic execution of documents. Generally, for a will to be valid in Colorado the will must be signed by the person executing it and either signed by two persons who witnessed the execution of the will, or acknowledged by a notary public (or someone authorized by law to take acknowledgements). However, a will executed with both two witnesses and a notary public’s acknowledgement may be admitted to a court as a self-proving will. The benefit of a self-proving will is that it allows a probate court to easily accept the will as the true will of a deceased person without the need for testimony or extrinsic evidence. Even in cases where the remotely executed will is executed in accordance with the remote notarization rules described above, and even where two online witnesses are present as well, we recommend that once this pandemic has passed clients appear in our offices for purposes of re-executing their wills and estate plan documents in accordance with more traditional standards.
Special Counsel