Virtual Notary Public and Witnessing of Estate Documents Continue Under NY Pandemic Relief Executive Orders

By Carly M. Speyer, Esq.

In the early days of the Covid-19 crisis, Governor Cuomo issued Executive Orders that specifically addressed the challenges presented for two common situations in the legal field: the notarization of signatures and the witnessing of estate planning documents, like Wills and Health Care Proxies. Under NY law, a notary or witness generally needs to be physically present with the signing individual at the time a valid act of notarizing or witnessing takes place.  In recognition of the fact that the pandemic would make physical presence inadvisable or sometimes impossible, relief from the strict requirements of the statutes was granted by Executive Orders that authorized a “virtual” process.

Executive Order 202.7 permits remote notarization with the following conditions:

1. The individual must display valid photo ID to notary public during video conference if not personally known to notary;
2. The witnessing of the signature(s) must be by two-way video conference allowing for direct interaction between notary and signatory (i.e., not prerecorded video);
3. The signatory must affirmatively represent to notary that he/she is physically located in New York State;
4. The signatory must transmit a legible copy of signed document by electronic means to notary on same day of conferenced signature; and then
5. The notary may notarize the copy received electronically and transmit same back to signatory.  The notary may repeat the notarization on the original signed document “as of” the date of the video-conferenced execution as long as notary receives the physical copy of the original signed document (with the electronically notarized copy) from the signatory within 30 days after the execution.

Executive Order 202.14 sets a similar procedure for the remote witnessing of Wills, Health Care Proxies, and Statutory Gift Riders to Powers of Attorney.  The signatory and witness must meet all of the requirements set forth above for remote notarization, except that there is no specific requirement that the signatory affirmatively represent to the witness that he or she is physically located in New York State.

The authority granted under these Executive Orders has been extended multiple times, most recently by Executive Order 202.92, which extends the effectiveness to February 26, 2021.

[Editor’s note:  The authority was extended to March 24, 2021 via Executive Order 202.95]