Remote Notarization for Certain Estate Planning Documents During Coronavirus Emergency

Obermayer Rebmann Maxwell & Hippel LLP
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Obermayer Rebmann Maxwell & Hippel LLP

During the healthcare crisis caused by COVID-19, Pennsylvania and New Jersey have temporarily suspended their requirement that notaries be physically present at the execution of certain estate planning documents. For many people who wanted to update their documents but were concerned about a lack of access to notaries, the relaxation of the rules provides a welcome balm.

The Pennsylvania Department of State has recognized the urgency of making updates to estate planning documents, especially for the groups who are particularly at risk for fatal complications from COVID-19. Pennsylvania’s law does not limit the types of documents that may be executed by remote notarization. Therefore, the documents you may need to update most urgently, including financial powers of attorney, self-proving wills or codicils, and advance health care directives/health care powers of attorney can all be executed by remote notarization.

New Jersey’s law permits remote notarization for all but certain types of documents. Remote notarization is not permitted for wills and codicils, family law documents and certain documents governed by the Uniform Commercial Code.

In Pennsylvania, to utilize the audio visual communication technology, the notary must give notice to the Department of State prior to completing the initial remote notary act, use a Department approved e-notary solution that offers remote notarization technology, and indicate in the notary certificate that the notarization was done using communication technology.

In both Pennsylvania and New Jersey, the notary must be able to verify the identity of the person executing the document and must be able to reasonably identify the record he is notarizing. Both states additionally require an audio-visual recording of the performance of the remote notarial act be retained by the notary public for a period of ten (10) years.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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