In
response to the growing COVID-19 pandemic, many state governors and legislators
have swiftly moved to pass laws—either by executive order (“EO”) or traditional
legislative processes—to allow notaries to remotely carry out their duties
while maintaining social distancing practices and abiding by stay-at-home
orders.

Moreover,
on March 19, 2020, United States Senators Mark R. Warner (D-VA) and Kevin
Cramer (R-ND) introduced S. 3533, the “Securing and Enabling Commerce Using
Remote and Electronic (SECURE) Notarization Act of 2020” which would permit
immediate nationwide use of remote notarizations on a federal level that would,
if enacted, preempt any and all of these state measures.

However,
until then, the following list illustrates the current landscape of remote
notarization laws among all 50 states as of April 13, 2020:

I.
State Laws Authorizing Remote Notarization

The
following states have laws that authorize, with varying requirements, remote
notarizations: Arizona, Florida, Idaho, Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma,
South Dakota, Tennessee, Texas, Utah, Virginia, Vermont, Washington, Wisconsin.¹

II.
Pending State Legislation for Remote Notarization

Both
Alaska and New Jersey currently have remote notarization bills which have
passed both houses and are awaiting action by their respective Governors.

III.
Executive Orders/Actions in Response to COVID-19

a.
Alabama

On March
26, 2020, Alabama Governor Kay Ivey issued an executive order (Proclamation of
Governor) permitting Alabama notaries who are licensed attorneys, and Alabama
notaries who work under the supervision of licensed attorneys, to notarize
using videoconferencing in lieu of personal appearance.  Further, any
individual who witnesses a document through videoconference technology is
considered an “in person” witness, if the identity of the individual is
validated by the remote notary.  The executive order expires at the
termination of the public health emergency.

b.
Arkansas

On March
30, 2020, Arkansas Governor Asa Hutchinson signed EO 20-12 permitting, among
other things, certain remote notaries—i.e.,
only notaries who are (1) attorneys licensed to practice law in
Arkansas, or (2) licensed Arkansas title agents, or (3) supervised by such an
attorney or title agent, or (4) employed by a financial institution registered
with the Arkansas State Bank Department—to notarize documents through remote
“real-time audio and visual means.”  Further, both the notary and
the signer must be physically located in Arkansas.  EO 20-12 expires at
the termination of the public health emergency.

c.
Arizona

In April
of 2019, Arizona enacted SB Bill 1030 which allows remote notarizations subject
to certain requirements starting on June 30, 2020.  However, due to
COVID-19, on April 8, 2020, Arizona Governor Doug Ducey signed EO 2020-26 which
accelerates the SB 1030 timeline to start on April 10, 2020.

d.
Colorado

On March
27, 2020, Colorado Governor Jared Polis signed EO D 2020 019 permitting
notarial officers to perform remote notarizations using real-time audio-visual
communication technology.  Further, the EO authorized Colorado’s Secretary
of State to establish rules in furtherance of this temporary remote
authorization.  On March 30, 2020, the Colorado Secretary of State issued
detailed implementation rules which stated, among other things, that the notary
and signer must be physically located in Colorado and the process must be
recorded and stored for 10 years.  EO D 2020 019 expires on April 27, 2020
unless extended by further executive order.

e.
Connecticut

On March
23, 2020, Connecticut Governor Ned Lamont signed EO No. 7K authorizing, among
other things, notarial officials (or Commissioners of the Superior Court of
Connecticut) to perform remote notarizations using “an electronic device or
process” to communicate with a remotely located signer if the following
conditions are met: (1) if not personally known to the notary, the signer must
present valid photo ID during the remote session; (2) the “communicative
technology” used must be capable of recording the session and storing it for 10
years; (3) the signer must be physically situated in Connecticut; and (4)
signer must transit an electronic version of the signed document to notary on
same day it was signed.  Further, EO No. 7K contains additional requirements
related to remote notarizations for wills and real estate closings.  EO
No. 7K expires on June 23, 2020 unless extended by executive order.

f.
Illinois

On March
26, 2020, Illinois Governor JB Pritzker signed EO 2020-14 which permits, among
other things, Illinois notaries to perform remote notarizations “via two-way
audio-video communication technology” provided that (i) the notary is
physically within the state while performing the act; and (2) the notarial act
follows the guidance posted by the Illinois Secretary of State.  The
Secretary of State’s guidance requires, among other things, that both the
signer and notary be located in Illinois and that the recording of the notarial
session be stored for at least three (3) years.  EO 2020-14 expires when
the Governor’s proclamation is rescinded.

g.
Iowa

In April
of 2019, Iowa enacted Senate File 475 which allows remote notarizations subject
to certain requirements starting on July 1, 2020.  However, due to
COVID-19, on March 22, 2020, Iowa Governor Kimberly K. Reynolds issued a
Proclamation which temporarily authorizes remote notarizations until April 16,
2020, unless terminated or extended by the Governor.  As such, unless
further action is taken by the Governor, after April 16, 2020, remote notarizations
will not be allowed in Iowa until July 1, 2020.

h.
Maryland

In May of
2019, Maryland enacted Senate Bill 678 enabling remote notarizations subject to
certain requirements starting on October 1, 2020.  In response to
COVID-19, on March 30, 2020, Maryland Governor Larry Hogan signed EO
20-03-30-04 which, among other things, authorizes remote notarizations during
the emergency.  Governor Hogan did not accelerate the timeline of Senate
Bill 678 and, therefore, EO 20-03-30-04 is only a temporary measure allowing
remote notarization in Maryland until the end of the state of emergency.
At the conclusion of EO 20-03-30-04, remote notarization will not be available
in Maryland until October 1, 2020.

i.
Michigan

In 2018,
Michigan enacted HB 511 authorizing remote notarizations subject to certain
requirements.  However, in response to COVID-19, on April 8, 2020,
Michigan Governor signed EO 2020-41 which, among other things, temporarily
relaxes strict compliance with certain requirements under Michigan law as they
relate to in-person notarial acts and witnessing.  EO 2020-41 expires on
May 6, 2020.

j.
Nebraska

On May 30,
2019, Nebraska enacted LB186 (Online Notary Public Act) which authorizes remote
notarizations subject to certain requirements starting on July 1, 2020.
However, in response to COVID-19, Nebraska Governor Pete Ricketts signed EO
20-13 which, among other things, waived the July 1, 2020 effective date and
allowed the Nebraska Secretary of State to immediately implement the remote
notarization act.

k.
New Hampshire

On March
23, 2020, New Hampshire Governor signed EO 2020-04 #11 permitting remote
notarizations subject to certain requirements, including, but not limited to:
(1) the notary and the signer can communicate simultaneously by sight and sound
through an electronic device or process; (2) if the signer is out of the state,
the document to be signed must relate to New Hampshire; (3) the remote
recording must be kept for the duration of the notary’s commission; and (4)
upon signature, the document must be mailed by the signer to the notary.
EO 2020-04 #11 expires at the end of the state of emergency.

l.
New Mexico

On March
30, 2020, New Mexico Governor Michelle Grisham signed EO 2020-015 permitting
remote notarizations subject to certain requirements, including, but not
limited to: (1) technology used must allow for the direct interaction between
the notary, the signer, and any required witnesses; (2) each party must represent
that they are presently in New Mexico; (3) if unknown to notary, signer and/or
witness must present valid identification; and (4) the signer must transmit the
signed document to any witnesses and then to the notary on the same day.
EO 2020-015 expires at the end of the state of emergency.

m.
New York

On March
19, 2020, New York Governor Andrew Cuomo signed EO No. 202.7 permitting, among
other things, remote notarizations using audio-visual technology if the
following conditions are met: (i) the person seeking the notary's services, if
unknown to notary, presents valid photo ID during video conference; (ii) video
conference must allow for direct interaction between the signer and notary;
(iii) the signer must be located in New York;  (iv) the person must send
an electronic version of the signed document to the notary on same day it was
signed; (v) notary may notarize the transmitted copy of the document and
transmit the same back to the person; and (vi) the notary may repeat the
notarization of the original signed document as of the date of execution
provided the notary receives such original signed document together with the
electronically notarized copy within thirty days after the date of
execution.  EO 202.7 expires on April 18, 2020 unless extended by further
executive order.

n.
Pennsylvania

On March
25, 2020, the Pennsylvania Department of State requested and received a
temporary suspension of the Pennsylvania statute regarding the in-person
requirement for notarizations related to real estate transactions.
Specifically, the March 25, 2020 notice suspended the personal appearance
notary requirement for: (1) personal
real estate transactions that were in process when the emergency was declared;
and (2) all commercial real estate transactions, including new
transactions.  The Pennsylvania Department of State followed up with a
second notice on April 2, 2020 with additional specifications for remote
notarizations on other records, such as wills and power of attorneys.  The
notices did not specify an expiration date.

o.
Rhode Island

On April
3, 2020, the Rhode Island Department of State, in collaboration with Rhode
Island Governor Gina Raimondo, temporarily authorized remote notarizations
subject to Standards of Conduct promulgated by the Governor and Secretary of
State.  Remote notarization authorization expires at the end of the state
of emergency.

p.
Vermont

In 2018,
Vermont enacted the Revised Uniform Law on Notarial Acts, which includes a
provision enabling a notary to perform remote notarial acts, but deferred the
effective date of the provision to when the Vermont Secretary of State was able
to adopt rules to implement it.  In response to COVID-19, on March 25,
2020, the Vermont Secretary of State promulgated emergency rules allowing
remote notarizations subject to certain conditions.  The emergency rules
expire 180 days from the effective date.

q.
Washington

In April
2019, Washington enacted SB 564 authorizing remote notarizations subject to
certain requirements starting on October 1, 2020.  However, in response to
COVID-19, on March 24, 2020, Washington Governor Jay Inslee signed EO 20-27
which, among other things, accelerated SB 564’s effective date to take effect
immediately and will expire, unless further action is taken, on April 26,
2020.  As such, unless further action is taken by the Governor, after
April 26, 2020, remote notarizations will not be allowed in Washington
until October 1, 2020.

r.
Wisconsin

On March
3, 2020, Wisconsin enacted AB 293 authorizing remote notarizations subject to
certain requirements starting on May 1, 2020.  However, in response to
COVID-19, on March 18, 2020 and March 20, 2020, the Wisconsin Department of
Financial Institution issued an Emergency Guidance stating that, among other
things, the Department will construe certain statutory language in existing
Wisconsin statutes to allow remote notarizations.  The Emergency Guidance
applies until the end of the state of emergency.

s.
Wyoming

On March
24, 2020, the Wyoming Secretary of State promulgated Guidance on Temporary
Remote Notarization which allows, among other things, remote notarizations in
light of COVID-19.  The Secretary of State offers the following
recommendations: (1) remote Wyoming notaries should complete the training
provided by an approved remote online notarization; (2) remote notaries should
use that provider’s technology standards and security features; (3) remote
notaries should notify the Wyoming Secretary of State and provide documentation
of completed training; and (4) remote notaries should complete an intent to
perform remote notary form.  The Guidance does not specifically list an
expiration date.

IV.
Conclusion

Remote
notarization laws are rapidly changing in the United States as a result of
COVID-19.  As such, practitioners must be familiar with evolving remote
notarization laws in their respective states.  This list is merely a
summary of the landscape of remote notarizations as of April 13, 2020.

For more
information about remote notarization laws during COVID-19, please contact Michael
O’Donnell at modonnell@riker.com or
Anthony
Lombardo at alombardo@riker.com.

_________________________________

¹Many of
these listed states have temporarily modified their remote notarization laws by
executive order/action in light of COVID-19 (See Section III).