Maryland Estate Planning During Coronavirus Epidemic:

Emergency Order by Governor Hogan Permitting Remote Notarization

Estate planning during the coronavirus epidemic is made a bit easier because of an emergency Order that permits remote notarization of documents in Maryland. Before this executive Order, documents could not be notarized without clients physically appearing before a notary with a resulting elevated risk of exposure to the virus.

An Executive Order Permitting Remote Notarization

On March 30, 2020, Maryland Governor Larry Hogan ordered that documents, including estate planning documents, can be notarized remotely. This means that a person can “appear” before a notary by being connected remotely through certain audio and visual technology. [Emergency Order 20-03-30-04.] As Maryland estate planning lawyers, we welcome this development.

Remote Notarization Reduces Health Risk

In the words of the Order, it will “reduce the threat to human health caused by COVID-19 in Maryland” by permitting “essential notarial services” without requiring an in-person meeting before a notary.

This is an additional tool for our estate planning lawyers to use. It will help us working with current and new clients to construct estate plans that work and that accommodate the Maryland stay-in-place directives.  We all have an obligation to protect the health and wellbeing of each other. As Maryland estate planning lawyers, we have redesigned our approach so that we can continue to provide these important services without exposing our current and new clients to any additional risk. Governor Hogan’s Order permitting remote notarization makes our job easier.

The Executive Order and Present Law

The emergency executive Order is temporary and remains in effect until the termination of the Maryland state of emergency. By the express terms of the Order, it supersedes “the effect of any statute, rule, or regulation” inconsistent with the Order while it is in effect. There are two reasons why this is important. First, until later this year, Maryland does not permit remote notarization. The Governor’s emergency Order permits remote notarization immediately. A new remote notary law, however, is scheduled to take effect October 1, 2020. The new remote notary statute states that it will not permit remote notarization with respect to Wills or trusts. Second, the executive Order does not contain that limitation. Until the executive Order expires, the Governor’s Order controls, and remote notarization will be permitted with respect to Wills and trusts.

What is the Purpose of the Notary?

Traditionally, a client would need to personally appear before a notary to finalize certain estate planning and related documents. This would enable the notary to verify the identity of the individual signing, assess that person’s competency and whether that individual’s acts were knowingly and voluntarily made. Thus, the validity of a notarized document could be presumed. The underlying assumption of remote notary statutes is that technology now permits these verification functions to be carried out without the physical, in-person requirement imposed by traditional statutes.

How the Executive Order Works

Under the executive Order (augmented by guidance supplied by the Maryland Secretary of State), and under the new Maryland remote notary law, the permissible technology is not the general conferencing technology (such as Skype or Facetime). Instead the remote notary must use a commercial service designed specifically for that purpose which is recognized and approved by the State. It is extremely important to follow the procedures set out in the Order and in the Secretary of State’s guidance.

How Will Remote Notarization Help Estate Planning?

Remote notarization is important for estate planning in two respects: it helps when clients wish to modify certain revocable trusts, and it permits the execution of recordable real estate deeds.

Many existing revocable trusts provide that revocation or amendment must be by an acknowledged, meaning notarized, writing signed by the settlor. If a client wants to modify a revocable trust with such a provision, a notary is presumably required. The new notary law specifically provides that remote notarization is not permitted “with respect to” a Will or a Trust. Md. St. Gov. Sec. 18-214 (a). The Governor’s emergency Order, however, does not include this restriction. The practical impact of this difference is that remote notarizations of trust revocation or amendment is allowed.

Only notarized deeds may be recorded in the Maryland land records.  Md. Real Prop. Sec. 4-101. Some common estate planning techniques require recordable deeds to real property. These include transfers into trusts, the creation of life-estate deeds, and gifts of real property. The remote notarization Order facilitates these and other transactions dealing with real estate.

Rethinking Business as Usual

The coronavirus pandemic has caused all of us to rethink “business as usual.” The same day of his remote notary Order, Governor Hogan issued a sweeping “stay-at-home” order mandating strict controls as a further curb on the spread of the disease. For weeks before that action, of course, he took other actions to slow the spread of the coronavirus. Until the present conditions abate, we need to work in ways that reflect the seriousness of this health risk.

How Our Firm Now Operates

We take our obligation of protecting the health and wellbeing of our clients, lawyers, paralegals and staff seriously. The law firm of Franke, Sessions & Beckett, LLC closed its offices to in-person meetings on March 16, 2020. Since then, we have worked remotely. We certainly never contemplated a health emergency of this severity or scope. Fortunately, however, we are positioned to work remotely with full access to our files, to our legal and tax research facilities and to virtually all our other resources. Although working remotely, we have instituted procedures to seamlessly communicate with each other so that we remain a cohesive team and continue to work collaboratively.

We remain committed to assisting current and new clients with necessary estate planning services. We have developed estate planning techniques that do not require in-person meetings to minimize the risk that coronavirus poses to our clients and staff.  Please go to our website Home Page for the contact link or call 410-263-4876 to get in touch with our office.