New law sparks remote notary, but not e-will, work
Remote notary service started in Florida just as people were beginning to hear about a new thing called the coronavirus. By the time the e-will process was allowed, the country was in the middle of the full-blown COVID-19 pandemic.
So, was the ability to do these functions remotely during a pandemic a boon? For notary services, absolutely. For e-wills, not so much.
Both are allowed in Florida following 2019 legislation that authorized remote notary services as of January 1, 2020, and electronic execution of wills as of July 1, 2020.
“I don’t know of any online notarization platform that is doing e-wills right now,” said Sarah Butters, Probate Division director for the Real Property, Probate and Trust Law Section. “I know some that are advertising they are doing it….
“It took a long time for any of the notary platforms to offer any aspect of that [e-will] legislation. I think they were super busy with the notarization of transactions. Now that we’re a little bit more used to the [remote] notarization platform, they’ve started to develop what’s required to do electronic estate planning.”
Bar Board of Governors member and probate practitioner Laird Lile said there’s a natural reluctance by attorneys to do electronic wills because of extra requirements in executing the documents and new requirements for long-term storage of the electronic records and documents.
“These are documents that are supposed to last a long time,” Lile said. “I think the only appropriate depositories are the clerks of court. We trust them with land records that are supposed to last forever; we ought to [continue to] trust them with our testamentary documents.”
Butters said she’s concerned that lawyers and others will think that remote notarization and remote execution of an electronic will are the same, when the requirements for the latter are stricter. She said she viewed the training video from one company offering e-will services and found it raised questions.
“It makes me nervous from the consumer protection view of relying on the advertisement that it’s available when I’m not convinced it’s compliant,” Butters said. “The legislation does contemplate the document and the video record [of the execution] will be stored in a tamper-proof way in the platform that you use….”
Cristin Culver, vice president of communications for Notarize, a company that lobbied for the changes in Florida, said the company has seen a massive surge in online notary work with the pandemic and the new law. She also said Notarize, working with another company, Trust & Will, did the first e-will in Florida in August, but was not certain another had been done.
“Specifically for Notarize, it’s hard to overstate what a transformative year we’ve had – we’ve seen our [remote notary] business grow 600% in the last nine months as the world was forced to stay home, but business and personal lives still needed to move forward in a socially distanced world,” Culver said. “For real estate transactions, Florida is the number two state where we see the most volume and business growth.”
Counting all remote notarizations, including for financial services, business documents, and individuals, Florida ranks fourth for Notarize behind California, Texas, and New York, she said.
Culver said Florida was one of 11 states to pass remote notary legislation in 2019, bringing the total to 21 states with that service.
The first e-will done by Notarize was for the brother of Trust & Will founder Cody Barbo. The company offers online estate planning services.
At the time it was done on August 25, Barbo said, “Consumers have come to expect all matters of their life to be digital, and unfortunately, legal is one of the few remaining industries to resist adoption of technology. With the pandemic, perceptions have changed dramatically, and consumers, attorneys, and legislators are more open-minded to e-wills.”
Lori Francis, a remote online notary and registered professional reporter for the court reporting company Phipps Reporting, said there has been more demand for remote notary work, but it’s not a steady flow.
“Sometimes I’ll go weeks without doing one and then I’ll have three in one week or four in one week,” she said. “The remote online notarizations are definitely something that has increased and is happening.”
So far, Francis has not been asked to witness a will execution, although she said the platform Phipps uses for remote notarizations can handle that.
“It’s a little bit different, and it’s a little more complicated,” she said. “I haven’t gotten any requests for it.”
Francis said she expects the market for remote notarizations to remain after the pandemic because of the convenience.
“It gives me the opportunity to notarize anyone in the United States,” she said. “As far as it being safe, yes, it’s that. They just have to have the right browser and devices to get online and do the audio-visual portions.”
The 2019 legislation, HB 409, allows notaries to affix their seal to documents for which they witness the signing via a two-way audio-visual link. Notaries are required to see ID and ask questions to ensure the signer is capable.
Only existing notaries can be online notaries. They must register with a third-party vendor who provides the audio-visual platform and technical support, and the notaries must complete additional education.
Recordings of the transactions must be kept, and the notaries must also keep detailed logs of each transaction. There are additional requirements for wills, where witnesses may also be appearing remotely, to protect the electronic document from tampering.