During the COVID-19 pandemic, New York State enacted temporary emergency measures that permitted remote online notarizations. On December 22, 2021, NYS Governor Kathy Hochul signed into law Senate Bill 1780C, amending the New York State Executive Law by adding Section 137-a, which will make the ability to perform remote online notarization in New York State permanent. The law goes into effect on June 20, 2022; but, at this point, there are many details that remain unknown while we await the New York State secretary of state to promulgate regulations as directed by the new statute.
Here’s what we do know about the process from the recently enacted legislation:
- The notary must be physically located in New York State while performing the remote online notarization; the signor does not have to be physically located in New York State.
- The notary will be required to register with the secretary of state in order to be permitted to perform remote online notarizations.
- The notary will establish an electronic signature pursuant to the regulations to be issued by the secretary of state.
- The technology used to facilitate the online notarization and communicate with the signor must be approved by the secretary of state and must be secure; provide for live, real-time witnessing; and permit the notary to communicate with the signor during the signing. The secretary of state has yet to issue the regulations that will contain the specific requirements for this technology.
- The notary must keep a copy of the recording of the video and audio conference as well as a notation regarding the type of documentation provided to establish the identity of the signor for a period of at least 10 years.
- When necessary, the technology used to facilitate the online notarization must be accessible to individuals with disabilities.
The regulations, which the secretary of state is charged with promulgating, will provide the details and framework for, among other things, the registry that will be required for the notary and the technological requirements for the software systems used to conduct the notarizations as well as fraud prevention tools and the process to authenticate the signor’s identity and to safeguard the signor’s information.
Online remote notarizations are already permitted in over 35 states and, after the passage of this legislation, New York will now join those ranks. The ability to conduct remote online notarizations is generally welcomed by the real estate, financial, and legal industries, as it has the potential to provide a quicker, more efficient process to execute loan documents and other legal documents. Remote online notarization will also provide opportunities for individuals who are homebound or would otherwise have difficulty accessing in-person notary services.
More will be known about the specific requirements and process after the secretary of state promulgates the necessary regulations. Attorneys in Barclay Damon’s Trusts & Estates Practice Area will continue to closely monitor the development of the regulatory framework that will ultimately guide the remote online notarization process in New York State. If you have questions about online remote notarization, please contact one of Barclay Damon’s trusts and estates attorneys.
If you have any questions regarding the content of this alert, please contact Marcy Robinson Dembs, partner, at mdembs@barclaydamon.com; Bridget Dehmler, associate, at bdehmler@barclaydamon.com; or another member of the firm’s Trusts & Estates Practice Area.