In IRS Notice 2020-42, and in light of current social distancing rules, the IRS recently granted temporary relief from the physical presence requirement under regulations governing participant elections. Generally, those rules require certain elections made by a participant in a retirement plan, including spousal consents, to be witnessed by a notary public or retirement plan representative. However, under the new guidance, so long as certain requirements are met, such in-person witnessing is not required.
Notary Public Witness
In the case of participant elections (and spousal consents) witnessed by a notary public, the in-person requirement is deemed satisfied if an electronic system using remote notarization is used and the document is executed using live audio-video technology that otherwise satisfies the in-person regulatory requirements, and is consistent with state law requirements that apply to the notary public. Most states currently permit remote online notarization. Illinois is among such states, but requires, among other things, that the notary is physically in Illinois while performing the notarial act.
Plan Representative Witness
In the case of participant elections (and spousal consents) witnessed by a plan representative, the in-person witness requirement is deemed satisfied so long as an electronic system using live audio-video technology is used and the following requirements are met:
This temporary relief covers the period from January 1, 2020, through December 31, 2020.