Marin Voice: California needs to revamp in-person notary rules amid coronavirus crisis – Marin Independent Journal
The sudden onset of the coronavirus pandemic and subsequent shelter-in-place requirements have upended all of our lives here in Marin. Schools are closed, open-space access is limited, and countless small businesses have shuttered their doors with no clear idea when they will reopen.
Personally, I am the founding attorney of a boutique estate planning and trust administration law firm in San Rafael. This crisis has illuminated how California’s in-person notary requirements are outdated. In the current environment, these requirements unwittingly create more stress and anxiety for our already overburdened citizens.
Thoughtful estate plans include documents to prepare for incapacity and transfer assets on death including a living trust, will, durable power of attorney, and advance health care directive. Estate planning attorneys will often transfer assets to a living trust, including preparing deeds for real property and assignments of interests in business and financial assets. Successful completion of these legal documents provides great peace of mind to families in all situations, but especially in a time of public health uncertainty.
Given the legal significance of these documents in the event of incapacity or death, best practice involves ensuring they are notarized (except for a will, which must be witnessed by two adults and not notarized). Typically, this is a very straightforward process that typically involves the notary verifying the identity of the signer and then stamping the signed documents. But in a time of social distancing, how is one meant to complete this final step of estate planning?
While most aspects of our business and social lives have shifted virtual, California is not permitting notary publics to perform their services remotely. Previously, the guidance posted to the California Secretary of State’s website, which oversees notary publics, read “California citizens who wish to have their documents notarized remotely can … use an out-of-state remote online notary public.” This is an implicit acknowledgment that California law is far behind other states when it comes to moving our notary services into the digital age. The California Secretary of State recently updated its website to encourage California citizens to use a mobile notary, an option that many do not feel comfortable with.
According to analysis by the National Notary Association, 14 states actively permit remote online notarizations. In addition, 10 other states have approved laws in this area that are in various stages of implementation, with many of these go-live dates being pushed up in the midst of the COVID-19 situation.
Moreover, 13 states, have issued executive orders or other temporary rules permitting some form of remote online notarization for the duration of this crisis.
Why then is California, which has in many ways been a leader in best practices throughout the pandemic, one of just 13 states that is not permitting remote online notarizations?
As we intentionally slow our economy to combat the public health threat, we should not be exacerbating the economic pain. Notaries enable so many aspects of our economy to keep moving even while we are at home, from loan and mortgage signings to real estate transactions to legal services to businesses advancing their state licensing requirements.
For my estate planning clients, we are using alternative means to execute valid estate plans in spite of the prohibition of in-state remote online notarization. But the lack of action by our state government is adding unnecessary inefficiency, complication, and stress for families craving peace of mind in this uncertain time. It’s important that we correct this as soon as possible.
Valerie Gerard Kushel, of Corte Madera, is the founding attorney at VGK Law, a San Rafael based law firm specializing in estate planning and trust administration. She can be reached at firstname.lastname@example.org or by visiting vgklaw.com.
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