A notary used to be a person with a stamp physically present in front of the signors of a document. They were only able to notarize in their home state. Well, move over old-school notaries, (although you are still perfectly fine to use) because now anyone can sign and notarize documents, buy or sell real estate, or set up a Last Will and Testament entirely online. This is due to 78-page bill pertaining to electronic and remote notarization and witnessing of documents that was approved by the Florida Governor, Ron DeSantis, just a few months ago.
The advent of video technology has paved the way for this new bill, which goes into effect on Jan. 1, 2020. The bill will allow notaries to affix their seal and signature to legal documents that are not signed in their physical presence, if they witness the signature via live, two-way video conference.
This remote online notary (RON) process entails the use of technology such as Skype, FaceTime, Google Hangouts, etc. to meet the statutory personal appearance requirements for notarizations. Third-party witnesses needed for Wills and other documents could also appear remotely. Florida has now become 1 of more than 20 states to allow signers and notaries to use video communications to notarize signatures.
There are some caveats though. The Real Property, Probate & Trust Law Section of the Florida Bar agreed to prohibit the use of video technology to execute “superpower” of attorney, also known as a Durable Power of Attorney. This specific type of power of attorney document gives the agent the ability to amend wills, trusts, estates and other documents. For real estate transactions, the sellers, buyers and lenders must all provide prior written consent to use the process, and additional approvals are required if the use of a power of attorney is involved. Florida law requires two witnesses for the notarization of property deeds, and these witnesses will be required to be physically present either with the notary or the signer during the conference.
Surprisingly, supporters of this proposal include Elder Law Section of the Florida Bar. Let’s weight the pros and cons of such a draconian proposal:
- Increased access to legal services at a time when elderly citizens in Florida are living longer and may have trouble physically getting in front of a notary.
- An increase in Floridians that are now able to execute a Last Will and Testament more conveniently, such as, right from their home.
- Real estate closing agents can electronically record deeds, mortgages, death certificates and promissory notes in the official public records without the use of paper copies. All the interested parties, including the notary, signer, lender, broker, attorneys, etc., receive electronic copies of the fully executed and notarized documents immediately upon their filing.
- Out-of-state sellers of real estate in Florida may now execute documents from afar- but they must include a clause in their sales agreements specifically allowing for its use.
- Increase in fraudulent documents and transactions.
- Lack of adequately ensuring authentication of the identity of parties to the transaction.
- Giving Florida notaries greater online powers will open Florida courts to a flood of challenges from out-of-state litigations.
- Two years ago, former Governor Rick Scott vetoed the Electronic Wills Act saying it failed to strike the proper balance between convenience and safety.
The new law of remote notarization does bring the law of signing documents in Florida into the modern era. Everyone can leave a legacy, regardless of whether they are a busy adult, an overwhelmed parent, or a Baby Boomer. Although this policy will certainly be regulated, it is difficult to regulate bad actors. The old way of doing things is still perfectly valid, and it remains to be seen how widespread the use of electronic notarization, as well as the resulting fraud, will be.
OC Estate & Elder Law continues to serve our client as conveniently and efficiently as possible. Contact us for any questions on Florida law as it pertains to proper notarization, estate planning, elder law, probate or guardianship. Our attorneys are fluent in English, Spanish and Russian.