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By:  Kristy Bayus Williams, Esquire

By the recent passage of the “Remote Online Notarization” (RON) Bill (Senate Bill 678), which goes into effect on October 1, 2020, Maryland will be the most recent of six states who have authorized remote online notarizations.[1]  Below is an explanation of RON and a summary of how it compares to the current notarial requirements in Maryland, especially as related to estate planning law.

First, I should point out that there is an important distinction to make between “remote notarization” and “electronic notarization,” both of which have passed under Maryland law.

Electronic notarization is the process by which an electronic notary (“eNotary”), can utilize an electronic signature feature to sign the document and use an electronic seal to certify it.

Approximately half of the states in the United States allow electronic notarization on at least some documents, Maryland included. The relevant section of the Maryland Code governing electronic notarization provides that “[i]f a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.” Significantly, electronic notarization still requires the signer to physically appear before the eNotary.

On the other hand, remote notarization allows the Notary to use audio-visual (remote) technology over Skype or other internet-based webcam technology to verify the signer’s identity. The Notary does not need to be physically present to certify the signor’s identity.

The purported changes to the Maryland Code make it clear that the use of remote notaries will not be permissible in all instances. For example, a Notary acting through RON will not be permitted to notarize a Last Will and Testament[2] or a Trust Agreement under Maryland law.

Remarkably, the use of remote notaries will comply with the requirements under the Maryland Code for the execution of a statutory form power of attorney, but there is one caveat.  Currently, Md. Code, Estates and Trusts Section 17-110 requires that a power of attorney document be witnessed by two or more adult witnesses and be notarized by a licensed notary. This section allows the notary public to serve as one of the two required witnesses. However, under the new provisions to be added to the Maryland Code under the RON Bill, if the notary public is using RON technology to perform the notarial act, the notary may not serve as one of the two witnesses.

Finally, changes have been made to the requirements to serve as a Notary Public in Maryland. In addition to being over the age of eighteen years (which is the current requirement as well), notaries must also “(1) be a citizen or permanent legal resident of the United States; (2) be a resident of the State or have a place of employment or practice in the State (instead of the requirement to live or work in the State); and (3) be able to read and write English.”  The Bill also repeals the existing requirement that a notary public must be of “good moral character and integrity.”

For a thorough read of the changes to the Maryland Code, see the General Assembly website, Senate Bill 678.

[1] The other five states, as of the date of print are Virginia, Montana, Texas, Nevada and Minnesota. However, nine other states have laws set to pass in the latter half of 2019 and in 2020.

[2] Although notarization is not required for a Maryland Will, it is often included for the purposes of “self-proving.”

 

Kristy Bayus Williams is an Associate in PK Law’s Wealth Preservation Department. She focuses her practice on drafting estate planning documents, administrating probate estates, and counseling in the areas of estate taxes, asset protection, and elder law. Kristy can be reached at 410-339-6774 or kbwilliams@pklaw.com.

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