Temporary Emergency Video Notarization

by Carter Webb and James Fleming

To prevent the spread of the COVID-19 Coronavirus, on March 10, 2020, Governor Roy Cooper signed Executive Order 116 (the “State of Emergency”) declaring a State of Emergency, which is to be effective until rescinded.

The State of Emergency and its extensions made it very difficult for clients to go to their attorney’s office to sign important estate planning documents such as Last Wills and Testaments, Health Care Powers of Attorney, and Living Wills because of the requirement that each of these documents be signed in front of a notary and two witnesses.

To help North Carolinians stay safe while allowing them to overcome this problem, North Carolina Senate Bill 704, also known as the 2020 COVID-19 Recovery Act (the “Act”), was recently passed by the General Assembly of North Carolina and signed into law by Governor Cooper, and made effective, on May 4, 2020.

Below are some of the changes and additions made by the Act:

1. § 10B-25 is added to Part 3 of Article 1 of Chapter 10B of the North Carolina General Statutes – titled ‘Emergency video notarization’;
2. Article 3 is added to Chapter 10B of the North Carolina General Statutes – titled ‘Video Witnessing During State of Emergency’ with §§ 10B-200 and 10B-201;
3. § 32A-16.1 titled ‘Health care powers of attorney executed during State of Emergency’ is added to Article 3 of Chapter 32A of the North Carolina General Statutes; and
4. § 90-321.1 titled ‘Advanced directive for a natural death executed during a State of Emergency’ is added to Article 23, of Chapter 90 of the North Carolina General Statutes.

What this really means is that, until August 1, 2020, North Carolina is allowing documents to be notarized remotely through the use of video conferencing. North Carolina is also allowing individuals to witness signatures remotely through the use of video conferencing.

Therefore, the people of North Carolina can now legally sign their documents without having to visit their attorney’s office and risk being exposed to the COVID-19 Coronavirus. However, there are specific procedures that must be followed.

I will first explain the requirements in North Carolina for an attested, self-proving will. Thereafter, I will address the changes listed above, in that order.

Under § 31-3.2 of the North Carolina General Statutes, there are three kinds of valid wills:

1. Attested Written Will (see N.C.G.S. § 31-3.3);
2. Holographic Will (see N.C.G.S. § 31-3.4 and https://strausslaw.com/r-e-s-p-e-c-t-my-handwritten-will/); and
3. Nuncupative Will (see N.C.G.S. § 31-3.5).

Attested, Self-proving Will Requirements:
Pursuant to N.C.G.S. § 31-3.3, an attested written Will is a Will signed by the testator (the person who signs his or her Will) and attested by at least two competent witnesses. The testator is required to signify to the attesting witnesses that the document is the testator’s document by signing the document in witnesses’ presence or by acknowledging the testator’s signature to the witnesses. Then the attesting witnesses must sign the will in the presence of the testator.

An attested may be made self-proved at the time of execution or at any time thereafter through acknowledgment by the testator and affidavits of the attesting witnesses, each made before an officer authorized to administer oaths (i.e. a notary public) by following the form listed in N.C.G.S. § 31-11.6.

I now turn to the Act. The Act states that a notary public may notarize a document of a principal through video conference technology.

Emergency video Notarization under § 10B-25 – EXPIRES AUGUST 1, 2020:

As used in the Act, the term ‘video conference technology’ is electronic communication that:

1. Occurs in real-time;
2. Allows direct interaction between the principal (the testator) and the notary so that each can communicate by sight and sound;
3. Includes audio with sound clear enough that each can hear and understand all other participants;
4. Has sufficient quality to allow a clear and unobstructed visual observation of the face of each participant and any identification provided by the principal; and
5. Is not prerecorded

Under the Act, the following terms used in that chapter:

(1) requirement of personal appearance,
(2) appear in person before a notary,
(3) physical presence, and
(4) presence

are satisfied for the purpose of emergency video notarization if:

• The notary is physically present in NC;
• The principal verifies to the notary that he or she is physically present in NC at the time of the notarization;
• The principal identifies the county where he or she is located at the time of the notarial act; and
• The principal and the notary use video conference technology that complies with the requirements of this section.

Here are the other requirements for video notarization under § 10B-25, again which expires August 1, 2020, of a self-proving Will.

Notary Requirements During the Signing:

• If the notary has personal knowledge of the signer (principal), then the notary may rely on video conferencing to verify the signer’s identity. If no prior knowledge, then the notary must require evidence of the signer’s identity – such as a driver’s license (see § 10B-25(d)).
• The notary shall administer the oath or affirmation to the affiant using video conference technology.
• Notary must use the video to observe each signer (principal) sign each document that is to be notarized.
• Signer (principal) must verbally state what documents are being signed for the notarial record.
• After the document is signed by the principal, the principal shall do the following:

• Transmit a legible copy of the signed document by fax or other electronic means to the notary on the same day that the document was signed
• And also deliver the original signed document to the notary by mail or another physical method
• The notary shall compare the original document with the document that was transmitted by fax or other electronic means.
• If the documents are the same, the notary shall:
  • notarize the signature on the original document and date the notarial acts as of the date of the act observed using video conference technology; and
  • promptly transmit the original wet-notarized original document to the principal by mail or other physical delivery as instructed by the principal.

• The notary acknowledgment shall include all of the following:

• The NC county in which the notary public is located during the emergency video notarization;
• The NC county in which the signer (principal) stated that he or she was physically located during the emergency video notarization;
• The following statement:
  • I signed this notarial certificate on ______________ (Date) according to the emergency video notarization requirements contained in N.C.G.S. § 10B-25

The North Carolina Secretary of State provides an example at the following website: https://www.sosnc.gov/imaging/dime/webportal/55560773.pdf.

You will notice that there are two critical notary dates – (1) the date of the principal/witness signs and (2) the date all follow-up requirements have been met allowing the Notary to actually sign and notarize the document. They could be the same date or different dates.

Notary Journal Entry Requirement:

A notary who performs an emergency video notarization shall record information about the notarization in the notary journal that is the exclusive property of the notary. The journal shall be retained by the notary for at least 10 years and may be maintained in electronic form. The notary shall keep the journal in a secure location and not let another person make entries in the journal. A notary may surrender the journal to the notary’s employer upon termination of employment, but the notary shall also keep and maintain an accurate copy of the journal.

At a minimum, for each emergency video notarization, the notary shall include the following information in the journal:

• Time of day when the notary observed the signing
• Date of completion of the emergency video notarization
• Last and first name of each principal
• Type of notarial act performed
• Type of document notarized or proceeding performed
• Type of acceptable form of identification presented
• Type of video conference technology used during the emergency video notarization
• A statement that the notary and each principal could see and hear each other
• Whether any other person was present with the principal at the time of the signature and if so, the name of the person.

Emergency Video Witnessing under § 10B-200 – Expires upon the termination of the State of Emergency declared by Governor Cooper

This law expires upon the termination of the State of Emergency declared by Governor Roy Cooper in Executive Order 116, on March 10, 2020, and all of its extensions. Any person who witnesses the signature of record through video conference technology shall be construed to be an “in-person” witness and the signed record shall be considered to have been signed by the principal signer “in the presence” of such witness as long as the requirements for video conference technology are met.

An attesting witness shall be considered to have signed in the presence of the principal signer if ALL of the following are satisfied:

1. The signature of the principal signer is witnessed by the attesting witness pursuant to § 10B-201(a); and
2. The attesting witness immediately thereafter signs such record while still using the video conference technology.

The document that was witnessed must contain all of the following:

1. A conspicuous statement indicating that the record was witnessed by one or more witnesses physically located in NC;
2. The county in which each remote witness was physically located when witnessing the execution; and
3. The county in which each principal signer was physically located during the witnessed execution.

Health care powers of attorney executed during State of Emergency – Witness Requirement Waived – N.C.G.S. § 32A-16.1

For all documents that were signed prior to the termination of the State of Emergency declared by Governor Roy Cooper in Executive Order No. 116, on March 10, 2020, and all of its extensions, there is not a requirement that a healthcare power of attorney be signed in the presence of two qualified witnesses. However, a healthcare power of attorney must still be signed in front of a notary public.

If a healthcare power of attorney is signed without two qualified witnesses, then the document must contain a short plain statement indicating that it was signed in accordance with the procedures of N.C.G.S. § 32A-16.1. This new section does in fact expire at 12:01 A.M. on August 1, 2020.

Advanced directive for a natural death executed during a State of Emergency – Witness Requirement Waived – N.C.G.S. § 90-321

For all documents that were signed prior to the termination of the State of Emergency declared by Governor Roy Cooper in Executive Order No. 116, on March 10, 2020, and all of its extensions, there is not a requirement that an advanced directive for a natural death declaration be signed in the presence of two qualified witnesses. However, an advanced directive for a natural death declaration must still be signed in front of a notary public. If an advanced directive for a natural death declaration is signed without two qualified witnesses, then the document must contain a short plain statement indicating that it was signed in accordance with the procedures of N.C.G.S. § 90-321. This new section does in fact expire at 12:01 A.M. on August 1, 2020.

As you can see, there are strict requirements that one must follow to be able to have documents notarized, signed, and witnessed remotely. The careful attorney will likely make the wise decision to be the person who acts as the notary under these circumstances.

Just remember that this is allowed only for a limited time. Happy video notarizing and witnessing!!!!!