Utilization of Remote Notaries in Kentucky during the COVID-19 Pandemic
April 9, 2020
By: Mark A. Mangano and
In this time of mandatory social distancing, the normally routine act of a notary witnessing and attesting to the validity of the signature is complicated. Many transactions depend on the ability of the parties to ensure valid signatures on legally binding documents. However, now notaries often cannot witness signatures in person.
There are two solutions available in Kentucky for many types of transactions. It is important to keep in mind that while both may be legally acceptable, not all parties are willing to accept them in place of a live witnessed signature and notarization.
There are two ways to notarize documents remotely; (1) applying to the Kentucky Secretary of State to become an e-notary or (2) video conferencing with the person whose signature you are witnessing. Both solutions are authorized by SB 114 that became effective January 1, 2020. This timing is proving to be critical as remote notarization helps allow business to be conducted remotely while many are quarantined and unable to meet in person.
Kentucky had previously adopted the Uniform Electronic Transactions Act (UETA) which allowed many electronic document and e-signatures to be legally valid. SB 114 expanded upon the UETA’s remote abilities and brought Kentucky closer to par with most other states.
SB 114 permits the use of electronic recording of real estate documents by county clerks as well as the use of digital signatures for in person electronic notarization of real estate documents. Furthermore, the law allows notaries to conduct remote online notarizations in certain instances, including acknowledging the execution of real estate documents. It does not alter prohibitions on e-signatures for wills, negotiable promissory notes, or motor vehicle titles.
SB 150, signed by Governor Beshear on March 30, 2020, expands on the new abilities given to notaries in SB 114 but only during the COVID-19 emergency.
A currently active traditional notary may start electronically notarizing documents if they have applied to be an e-notary as there are a number of applications with the Secretary of State that have not been processed. A person who is not an e-notary or applied to become an e-notary can notarize remotely, but not electronically, by first, video conferencing with the subject who will be signing and second, recording a video of the act that is being notarized. This recording must be retained for 10 years. The notary must observe the individual sign the document and then the notary can complete the notarization on a separate sheet to be affixed to the document as soon as possible. The notarization can be mailed.
SB 150 also contains broader language concerning what documents can be remotely notarized during the COVID-19 State of Emergency. It states that for any required notarization used for any legal purpose, individuals who are not in the same physical location “shall be considered in the presence of one another if the individuals can communicate via a video teleconference in real time.” Furthermore, any document resulting from these video teleconferences shall be considered a single document even if it was “executed, acknowledged, or notarized in counterparts.” This language does not involve e-notaries.
While the SB 150 language allows for these remote notarizations, an important consideration is how other involved parties will treat these notarizations. A best practice would be to confirm with involved parties that they will treat a remote notarization as valid.