by Dean Wittman and Eric Romanowski
The COVID-19 public health emergency has undoubtedly impacted everyone. For many people in New Jersey, this impact has been profound. Among other things, this crisis has reinforced the reality that life can change in a moment. One way to be prepared for this reality is to have the appropriate estate planning documents in place before it is too late. With many offices closed however, New Jersey residents are left with fewer options to have these documents completed and notarized as may be required by law.
Remote Notarization Is Now An Option in New Jersey
Fortunately, we now have an option in certain circumstances that was not previously available in New Jersey. On April 14, 2020, New Jersey Governor Phil Murphy signed a law, effective immediately, which allows the electronic remote notarization of certain legal documents to occur and to be legally binding.
Prior to being signed into law, the bill included language prohibiting remote notarization of Wills and Codicils and also included a 90 day waiting period. However, the language in the most recent version, which Governor Murphy signed, removed the exclusion of these documents. This will allow New Jersey residents to remotely execute a Will and other estate planning documents from the safety of their own homes, without need for any risk of exposure to COVID-19, whatsoever.
Not every legal document can be lawfully notarized remotely. Examples of documents which are excluded from
remote notarization include family law documents, such as prenuptial agreements
and marital settlement agreements. Other
examples include certain documents under the Uniform Commercial Code. For those documents which are included, such
as Wills, Codicils, Living Wills and Power of Attorney documents, the following
six steps must be taken:
The notary must connect through sight as well as sound via communication technology with the remotely located affiant.
The notary must confirm the identity of the remotely located affiant. This confirmation can be done three different ways—if the notary can verify the remote affiant.
• Personal Knowledge.
• Credible Witness.
• Identity Proofing
The notary must confirm that the record before him or her is the same record in which the remotely located affiant made a statement or executed with a signature.
The notary must prepare a recording of the notarial act. Once the notary confirms the identity of the remotely located affiant and confirms the subject record, the notary, or someone acting on his or her behalf, must use a recording device to create an audio-visual recording of the notarial act. This means that an audio-visual recording must be made of the affiant signing the document as well as the notary taking proof of the affiant’s identity, administering an oath and signing as the notary.
The notary must make note of the use of the communication technology in the certificate and name affixation. As part of the certificate and name affixation, the notary must also include language stating that the notarial act was performed using communication technology.
The notary must save the audio-visual recording for at least 10 years after the recording is made.
It is important to note that this is not a permanent change in how documents can be notarized. The final sentence of the law states that it “shall expire upon rescission of Executive Order No. 103 of 2020”, which was executed by Governor Murphy on March 9, 2020. It is also important to understand that documents can also still be notarized in person while still following appropriate guidelines.
In Person Notarization Remains a Valid Option in New Jersey
Notwithstanding this new law, there is no prohibition of in person notarization of documents. As discussed above, the documents specifically excluded from remote notarization must still be notarized in person. Otherwise, for those who wish to still have their Wills and other estate planning documents notarized in person, law firms such as Zeller & Wieliczko, LLP employ caution and safety to ensure this remains a viable option. This can be accomplished by using one or more tables, central table where witnesses, counsel, and the client execute their respective portions of the document, whilst all parties are separated at a six (6) foot or more distance from the central table(s). All participants should wear gloves and masks, and the table(s) upon which documents are executed must be thoroughly sanitized immediately after each signing to prevent any potential residual cross-contamination. Any measures undertaken should be in compliance with CDC guidelines, and must not impede the ability of any party to the execution to hear, understand, or otherwise adequately participate in the process.
In summary, for the time being, remote notarization is now, at least temporarily, an option in New Jersey under certain circumstances. At the same time, in person notarization can still be completed safely, as long as proper procedures are followed. Either way, you should not hesitate to have your essential estate planning documents completed.
The materials and information provided within this blog are designed to be of general interest in order to enable you to learn more about the services offered by Dean R. Wittman, Esquire. The information contained within this blog is not intended to be legal advice and is not intended as a source of advertising or solicitation. The materials and information are not privileged information and your use of the materials and information does not create an attorney-client relationship with Mr. Wittman or any of the attorneys from Zeller & Wieliczko, LLP. This blog is not an offer to perform legal services. You should not rely on the materials or information as legal advice and should consult with a competent attorney in your state for legal advice related to your own situation. Prior results described within this blog do not suggest or guarantee that similar outcomes will be obtained with respect to future matters. DO NOT send any information to Mr. Wittman or Zeller & Wieliczko, LLP, concerning potential legal representation without first speaking with Mr. Wittman and obtaining his authorization to do so.
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