20 April, 2020
The current pandemic has accelerated the inevitable shift beyond bricks and mortar. We have been following this trend since 2017, which was our last post on Disruptive Innovations in Estate Planning. The coronaviris is - to put it quite mildly - disruptive. In response to the Covid-19 pandemic, Governor John Bel Edwards recently issued Proclamation 37, which temporarily allows remote notarization of certain documents, except wills, trusts, inter vivos donations, matrimonial agreements, acts pertaining to spousal support, and authentic acts. As of this writing, twenty-three (23) states have enacted legislation allowing remote notarization, including Arizona, Florida, Idaho, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin. Wisconsin was the last to join the party on March 20, 2020. As of this writing, thirty-seven (37) states allow electronic notarization. What's the difference? Electronic notarization recognizes the validity of a digital signature of a notary without relaxing the requirement of the physical presence of the notary, while remote notarization does not require the physical presence of the notary, who would be allowed to observe and certify the formalities of execution of a document through video conferencing technology. Louisiana is actually among the states that currently allows electronic notarization. The Louisiana Uniform Electronic Transactions Act (La. R.S. 9:2601, et seq) (the "LUETA") was adopted by the Louisiana legislature in 2001, which basically provides that digital signatures, including those of a notary, are just as valid as wet signatures. The specific language is a follows: "If a law requires a signature or record to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record." La. R.S. 9:2606 Wills, codicils, and testamentary trusts are specifically excluded from the Louisiana Uniform Electronic Transactions Act. La. R.S. 9:2603(B)(1). So electronic wills are still not allowed in Louisiana, at least for the time being. "Authentic acts," which require execution of a document in the presence of a notary and witnesses, appear to be excepted from Proclamation 37. As such, Proclamation 37 doesn't provide much needed relief from necessary social distancing for most transactions, including real estate transfers, wills, trusts, or any document requiring execution in the presence of a notary and witnesses. John Bel has rung the bell with Proclamation 37, but the Louisiana legislature will ultimately have to move us further toward the inevitable and promising(!) future of remote notarization.
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