While going through the COVID-19 pandemic, many states that did not previously allow
remote notarizations have taken emergency executive action to enable notaries to perform notarial
acts remotely using audio visual technology. While these orders have provided a solution to
attorneys looking for safe ways to continue their practices, they have not been without drawbacks.
Many attorneys are hesitant to have the validity of their documents rest solely on these emergency
orders. Our firm created a procedure early on in the COVID-19 shutdown utilizing Maryland’s
emergency remote notarization and execution orders that allowed us to continue serving our
clients’ estate planning needs. Despite the flexibility of the Maryland executive orders, however,
some clients struggle with the technology that is required to run a secure video conference.
When Maryland began shutting down in mid-March, remote notarizations were not
permitted. Governor Hogan took prompt action by issuing Emergency Order No. 20-03-30-04 on
March 30, 2020 (“First Remote Notary Order”) which, with the accompanying guidance from the
Secretary of State, allowed a notary to notarize any document using audio-visual technology.
Practitioners could either mail hard copies of documents for clients to sign on the video call or use
technology that allowed for electronic signatures—either method was acceptable under the First
Remote Notary Order.
The landscaped changed on October 1, 2020 when the Notarial Acts and Notaries Public
Act (enacted on May 13, 2019) became effective (“Remote Notary Act”).
1 Governor Hogan issued
Emergency Order No. 20-09-29-01 on September 29, 2020 (“Second Remote Notary Order”)
1 The Remote Notary Act is Maryland’s version of the Revised Uniform Law on Notarial Acts
(RLONA) that has been enacted in eleven states and introduced in four more.
which (1) superseded the First Remote Notary Order (2) recognized the Remote Notary Act as the
new legal framework for remote notarizations, and (3) negated the provisions of the Remote
Notary Act that excluded wills and trusts from the remote notary process.
The shift from the First Remote Notary Order to the Remote Notary Act was not a nominal
shift. The procedures for a remote notary under the Remote Notary Act are substantively different
from the procedures under the First Remote Notary Order.
Under the Remote Notary Act, the most significant change is that it requires remote
notarizations to be “Remote Online Notarizations” or RONs. In other words, a notary may not
notarize the physical hard copy of a document remotely by watching the client sign in one location
and notarize an identical document at another location —the document must be notarized
electronically.
The other procedural changes come largely through the binding guidance that the Secretary
of State has issued. The Secretary of State requires that all remote notarizations be done using one
of eight vendors that are listed on its website. The Secretary of State guidance and the approved
vendors are primarily focused on notarizations done in the real estate context which, in turn, places
an emphasis on high volume without the formalities required with estate planning documents. In
fact, one of the eight approved vendors only accepts a notary who has been directly referred by a
title company.
Other concerns with the remaining vendors on the official list include the fact that one does
not yet accept Maryland notaries, another does not appear to accept in-firm notarizes (in other
words a client can log on and have documents notarized, but you cannot direct that your notaries
perform the notarization or oversee the process), and another is facing such “overwhelming
interest” in the platform that it is unable to respond to email or phone inquiries. Of the vendors that
are available to notaries in the estates and trusts practice area, the platform costs and “session” or
“transaction” costs quickly push past $1,000 per year depending on how many notarizations you
do each month.
For estate and trust firms, an immediate concern is to connect with one of the approved
vendors and create a procedure that will allow them to continue serving clients safely (i.e.
remotely) during the remainder of the pandemic. But we would be remiss to not consider the longterm ramifications of the new norms that have been created these past few months. Clients are
accustomed to phone and video conference meetings to discuss, revise, and even sign estate
planning documents. It is unrealistic to assume that these expectations will cease once the
pandemic-restrictions have been removed. Remote notarizations are here to stay in the estate and
trust world, and we should approach our investment in vendors and procedures accordingly.
Hopefully, legislative and regulatory changes will be enacted to make remote notarization more
compatible with the estates and trusts law practice.
