The possibility of remote notarization has floated around the Probate Rules Committee for a number of years in Colorado. It took a pandemic for the rules to make their way into the light and allow the idea to become law, at least temporarily.
On March 30, 2020, Governor Polis issued an executive Order permitting remote notarization during the COVID-19 emergency. This Order gives notaries the option to notarize documents while we all practice social-distancing. The original Order was set to expire on April 30th, but the Governor extended the Order to remain in effect until May 30th. While this Order benefits just about every type of legal practice, the practical application of the new rules is more complex for estate planning attorneys.
What does the law say?
Rule 5 of 8 CCR 1505-11 lays out the temporary rules for remote notarization. The key points are as follows: (1) the notary must be able to see, hear, and communicate with the signor; (2) the interaction must be recorded and the recording must be kept for ten years; and (3) everyone must be physically located in Colorado. Additionally, after the document is signed, the signor must electronically send the notary the document to be notarized on the same day.
The rules are even more detailed for wills. After the above procedure is completed, the signor must mail the physical document to the notary within 15 days of signing, and then the notary must return the original document to the signor.
On April 24th, the Colorado Supreme Court’s Probate Rules Committee further addressed the situation by adopting C.R.P.P. 91 and 92 relating to witnesses. The rules validate remote witnessing and remote attestation of wills in conjunction with Rule 5 adopted by the Secretary of State. These rules are valid only during a period in which an executive Order of the Governor imposes social-distancing restrictions on the public. Further, the witnesses can only be the testator’s attorney or an individual professionally associated with that attorney. The rule requires that “wet signatures” be obtained by the testator and both witnesses on the original will. Finally, a will executed in this fashion cannot be submitted for informal probate.
Practical Implications – What do I do now?
In order to take advantage of this option, you and the signor must have access to a computer with video conferencing capabilities, such as Zoom, as the Order requires the notary to be able to see, hear, and record the interaction. Additionally, the signor must be able to deliver signed, original documents to the notary so that the notary receives them within the required 15 days. If you and your client have the ability to proceed, you must include information about the remote nature of the notarization in the notary block.
However, simply observing your client sign the documents is not enough. The Governor’s Order has a number of specific requirements that must be met during the video conference, such as confirmation that the signor consents to the video recording and storage, and is knowingly and voluntarily signing the documents.
Words for the Wary
There are a number of issues to be aware of if you decide to take advantage of the temporary rules. First, confirm with your malpractice carrier that you are covered. Some carriers are willing to permit a temporary rider on your policy, but others may prohibit remote notarization all together. Second, be aware that some states will not accept documents that have been remotely notarized in another state. Finally, the risks for elder clients are not diminished by social-distancing. In fact, some clients may be more at risk under these circumstances. Confirming capacity and evaluating the existence of undue influence and psychological abuse is all the more important when communicating with clients remotely.
Conclusion
Attorneys, like everyone, are operating under difficult circumstances. During this time, it is our duty to give our clients the peace of mind that they have valid estate planning documents that reflect their wishes. We must do what we can to give them that security. That said, when the risk abates and we open our offices again and it is safe for our clients to return, we plan to have them re-execute or otherwise confirm their documents by more conventional means.
Miranda K. Hawkins is the President of the CWBA and is a partner at Goddard Hawkins, where she provides practical legal advice and counseling to families and individuals in the areas of estate planning, trust and estate administration, probate, and estate and gift tax planning.
Jennifer A. Gordon is an associate at Goddard Hawkins, where she works with families and individuals in the areas of estate planning, trust and estate administration, and probate.