Necessity is the mother of invention, and when the COVID-19 pandemic first emerged in March 2020, the new reality of quarantine and social distancing required changes, and in some cases outright suspension, of a variety of laws and regulations. One new rule put in place at the time allowed remote notarization of legal documents in New York. While intended to be a temporary change, this provision has now been signed into law.

Most of the COVID-related measures were enacted by a series of Executive Orders by former Governor Andrew Cuomo after a State of Emergency was declared in 2020. When the first state of emergency was lifted on June 23, 2021, these executive orders were no longer in effect. Some of the changes were extended several times (e.g., the moratorium on evictions and foreclosures); others were permanently adopted by the Legislature (including modifications to the Business Corporation Law to allow shareholder meetings to be completely virtual).

In a variety of areas, including in trusts and estate work and real estate transactions, one of the most impactful changes was contained in Executive Order 202.7 which allowed a notary public to notarize a signature remotely via videoconference. Unfortunately, that provision was not extended after June 23, 2021. However, on December 23, 2021, Governor Kathy Hochul signed the Remote Notarization Act into law, and beginning June 30, 2022, notaries will once again be permitted to perform notarization by videoconference.

Requirements for remote notarization are contained in a new Section 137-a of the New York Executive Law and provide as follows: 

1. If the signer’s identity is verified via videoconference, the interaction must be recorded, and the recording saved for 10 years.
2. In order to serve as an electronic notary, a notary public must register with the Secretary of State. Registration must include a description of the technology to be used to attach the notary’s “electronic signature” to the document and provide a sample of the notary’s electronic signature. 
3. The electronic signature must be “unique to the notary public;” “capable of independent verification;” retained under the notary’s sole control and be capable of being “attached to the document” in a manner such that any subsequent alterations are detectable.
4. The notary must be physically located in the state of New York at the time of the notarization. Note that there is no requirement that the document signer be located in New York.

Additional regulations are to be adopted by the Secretary of State. For now, the requirements of the prior Executive Order, which mandated delivery of hard copies of the signed documents on the day of notarization as well as receipt of the original signed document within 2 weeks afterward, have been eliminated.

The Legislature has not acted to restore the ability to remotely supervise and witness the execution of wills, but we are hopeful this will return in the future as well.

If you are involved in a trust and estate or real estate transaction, talk with your attorney about remote notarization. We will be offering this option to clients as soon as the law goes into effect. Contact us for assistance with your legal matter.