Remote Online Notarization of Estate Documents

     Last year the Florida legislature adopted a new high-tech procedure to allow for the remote execution, witnessing and notarization of legal documents, including last wills.  This procedure solves a problem when a person has to execute a will or other estate documents and cannot access a notary public or witnesses, such as when traveling overseas, on a cruise ship, bedridden, hospitalized, too ill to travel, or homebound in a lockdown situation, such as a pandemic.

     The procedure for online notarization is far more complex than a typical will signing.  For physical presence notarization, the person whose signature is being acknowledged by the Notary Public will produce appropriate identification, and then wet sign the estate documents as the necessary witnesses watch, who then wet sign themselves.  For in person estate documents, if the Notary Public may have concerns about the capacity of the person signing, they may ask a few challenge questions, such as “what is today’s date,” “who is president,” “do you know why you are here,” and “do you want to sign a will today.” 

     Starting in July, 2020, Florida will allow for online notarization of Wills, Trusts, Health Care Directives and Durable Powers of Attorney.  The procedure for completing a remote estate document package is far more onerous than the in-person notarization described above.  This is due to the perceived greater possibility of both notary fraud and the possibility of manipulation of an at-risk adult by third parties who would benefit from the estate documents to be notarized.

     The initial step is for the attorney or notary to upload the estate documents to the online notary platform.  Once uploaded they must be tagged for use.  Tags include witness tags, signer tags, notary tags and text tags (for filling in dates, id type, and checkboxes, for example).  Once tagged and ready for execution, the attorney or notary tells the system to request that the testator log in and create an account. 

     Once access is granted, the testator may review the estate documents before signing.  At the scheduled execution time, the testator will be required to have their identification scanned in using an app available on iPhone and Android smart phones.  This app is similar to apps used for mobile check deposits.  Driver’s licenses and passports are acceptable forms of identification.  Once scanned and approved, the testator will have a maximum of two minutes to answer five multiple choice questions, which are soft pulled from credit reports, such as where did you live in 1995, what car do you own and the like.  If the testator gets eighty percent correct, they then get to proceed to the execution phase. If the testator fails this test twice, the testator is locked out of the system and unable to sign using a remote notary for a period of twenty-four hours.

     Signing the estate documents requires a desktop computer or laptop with a webcam and microphone.  The testator must be running Chrome or Firefox (no Safari) to sign.  At the same time the testator is online, the notary and the witnesses will also be online either remotely or, as to the witnesses, with the testator. 

     The notary must then verify that the testator is not (i) on drugs or alcohol that impair mental function; (ii) verify no physical or mental condition or long-term disability that impairs the ability to perform the normal activities of daily living; and (iii) ask if the testator  requires assistance with daily care.  If any answer is affirmative, then the estate documents may only be completed if the witnesses are physically present with the testator.  In addition, the notary must advise the testator that if they are a vulnerable adult, the estate documents they are about to sign will not be valid if witnessed by means of remote audio-video communication technology.   

     Once the foregoing provisions are met, the notary must then verify five questions:

           1.       Are you currently married and if so, what is the name your spouse.

           2.     Who assisted you in accessing this video notarization today.

           3.     Who assisted you in preparing the estate documents you are signing today.

           4.     Where are you currently located?

           5.     Who is in the room with you?

     The notary must weigh all of the foregoing before allowing the estate documents to be executed.  Any invalid responses may form the basis of invalidating the estate documents in a later legal challenge.

     Once all the estate documents are signed, they will be given a special encryption key which is designed to prevent future alteration.  In addition, the notary host site creates a digital log of all transactions and a video record of the closing, which must be deposited with a qualified custodian until the testator dies, in which event the electronic estate document must be filed with the court.  While more onerous, the ability to remotely notarize estate documents will facilitate planning when other solutions are unavailable.

 Michael J Posner, Esq., is a partner in Ward, Damon, Posner, Pheterson & Bleau, P.L. a mid-sized real estate, estate planning and business-oriented law firm serving all of South Florida, with three offices in Palm Beach County.  They specialize in probate, estate and trust planning and can assist with a variety of estate documents including remote and electronic estate documents.  They can be reached at 561.594.1452 or at mjposner@warddamon.com