Beware Remote Notarization of Wills, POAs
Remote online notarization (RON) may not be feasible for estate documents such as wills and powers of attorney. Writing for his law firm’s website, attorney Justin Brown said, “… practitioners should exercise caution as further clarification may be necessary to avoid the ambiguity created in permitting the RON of estate planning documents.”
An estate and tax planning, estate and trust administration, and estate litigation attorney with Troutman Pepper in Philadelphia, Brown also serves as an adjunct professor at Temple University’s James E. Beasley School of Law.
Brown summarized the problem as two-fold: a contradiction in Pennsylvania law, and the stated intention of an electronic signature law.
First, Pennsylvania’s Revised Uniform Law on Notarial Acts (RULONA) requires the customer to appear before the notary in person. The physical presence requirement in RULONA does not allow the customer to appear by means of audio-visual communication.
However, in April, under Act 15 of 2020, the Department of State temporarily authorized remote online notarization (RON). A Pennsylvania electronic notary may perform a notarial act for a customer who is not in the same physical location as the notary, by using an approved RON platform. This temporary authorization expires 60 days after the governor’s COVID-19 disaster emergency declaration expires or is lifted.
Brown points out that the Department identified three types of estate planning documents that require notarization: (1) powers of attorney, (2) self-executing wills, and (3) temporary guardianships. Three types of estate planning documents that do not require notarization but call for notarization as a best practice are: (1) advance health care directives/health care powers of attorney, (2) living wills, and (3) standby and temporary guardianships.
“Estate planning documents, however, are rarely, if ever, electronic documents that are electronically signed,” Brown wrote. Section 104(b)(1) of the Pennsylvania Electronic Transactions Act (PETA), which permits the use of electronic signatures, explicitly prohibits electronic signatures of wills, codicils, and testamentary trusts.
“As Pennsylvania does not recognize electronic wills, the order permitting RON of self-executing wills is confusing at best and invalid at worst because the only way to use RON on a will would be to execute an electronic will, which is explicitly prohibited under PETA.”
Second, the Uniform Law Commission’s Uniform Electronic Transactions Act (UETA), the basis for Pennsylvania’s law, was “intended to apply to “transactions related to business, commercial (including consumer) and governmental matters. … “transactions with no relation to business, commercial, or governmental transactions would not be subject to this Act. Unilateral generated electronic records and signatures which are not part of a transaction also are not covered by this Act.” (Brown’s emphasis).
Estate planning documents are unilaterally generated documents that are not part of a transaction. “If they cannot be executed electronically, then they cannot be electronically notarized, and the order relating to the use of RON with respect to these documents does nothing to ease the physical presence requirement in this era of social distancing.”