As some of you have already heard, on March 20, New York Governor Andrew Cuomo signed Executive Order No. 202.7, which will allow “notarial acts” required under New York law to be performed using “audio-video technology” (while not mentioned in the Order, presumably this refers to Skype, Zoom, Face Time or similar technology). The New York Order requires the person signing the document to represent that the person is physically situated in New York, and does not address witnesses acting remotely. It is anticipated that the governor of Massachusetts will soon sign a similar order (if it has not already been signed by the time you read this), addressing remote notarization and witness signatures.
These Executive Orders demonstrate a quick and proactive response to the constraints on mobility due to the current pandemic. Practitioners should be cautioned, however, that the use of the executive power to modify notary and witness requirements is, to our knowledge, unprecedented. Although the power granted to governors in some states is quite broad, we cannot be certain that these orders are valid. If possible, the highest court of the state in which such an executive order is signed should render a declaratory judgment on the matter, to give the public and their advisors complete comfort in relying on the orders. This is particularly true with respect to execution of a last will and testament.
In addition to these Executive Orders, a federal bill proposed in the Senate (S. 3533, unfortunately termed the "SECURE Notarization Act"), would authorize the nationwide use of remote online notarization ("RON"). Although the text of the bill is not available as of the time this is written, a summary of the bill (available here) also indicates that the bill will set minimal security and protocol standards, and provide certainty for interstate recognition of RON, while allowing states to implement their own standards regarding RON. Additional research and analysis will be needed to determine the effect such a bill may have on documents signed and presented for use in states that do not currently permit RON.
Links to the New York Executive Order and the status of the SECURE Notarization Act bill may be found here, on our page dedicated to updates regarding COVID-19. Please return to that page periodically, as we will continue to provide updates regarding additional executive and legislative action. If you are aware of an executive order, legislation, or other action that has been proposed, signed, or enacted in your jurisdiction, we would like to hear from you. If you would like to send us an update, please e-mail [email protected], so that we may share the timely information with others.
Meet the Authors:
A retired Partner in, and former leader of the Trusts, Estates, and Exempt Organizations section of, the New York law firm Milbank Tweed Hadley & McCloy, LLP—Mr. Blattmachr is recognized as one of the most creative trusts and estates lawyers in the country and is listed in The Best Lawyers in America.
He has written and lectured extensively on estate and trust taxation and charitable giving. Mr. Blattmachr is also widely respected for his dedication to always sharing his expertise and ideas with other lawyers, as well as mentoring less seasoned lawyers. These contributions are recognized in his receiving the Hartman Axley Lifetime Service Award and the Bloomberg Tax & Accounting's Leonard L. Silverstein Award.
Mr. Blattmachr graduated from Columbia University School of Law cum laude, where he was recognized as a Harlan Fiske Stone Scholar, and received his A.B. degree from Bucknell University, majoring in mathematics. He has served as a lecturer-in-law for the Columbia University School of Law and is an Adjunct Professor of Law at New York University Law School for its Masters in Tax Program (LLM). He is a former chairperson of the Trusts & Estates Law Section of the New York State Bar Association and of several committees of the American Bar Association. Mr. Blattmachr is a Fellow and a former Regent of the American College of Trust and Estate Counsel and past chair of its Estate and Gift Tax Committee. He is author or co-author of eight books and more than 500 articles on estate planning and tax topics.
His professional activities, include having served as an Advisor on The American Law Institute, Restatement of the Law, Trusts 3rd; and as a Fellow of The New York Bar Foundation and a member of the American Bar Foundation.
Vanessa Kanaga joined InterActive Legal in 2013, and serves as President and Director of Content Development. In her role, Vanessa oversees the development of InterActive Legal program content, in addition to working with CEO, Michael L. Graham, to guide the company in its future direction, and manage day-to-day operations.
Vanessa received her J.D. from Cornell Law School, Magna Cum Laude, in 2006, and holds a B.A. in Philosophy from Wichita State University, with a minor in Music, as well as an Advanced Professional Certificate from New York University School of Law. Following law school, Vanessa practiced in New York for several years, at Milbank, Tweed, Hadley & McCloy, LLP, and then Moses & Singer, LLP. In 2012, she returned to her home town of Wichita, Kansas, where she was an associate attorney in the estate planning and probate practice group at Hinkle Law Firm, LLC, before joining InterActive Legal.