North Carolina Changes Requirements for Estate Documents with Covid-19 Crisis

On May 4, 2020, North Carolina passed S.L. 2020-3 to make various changes to existing North Carolina law during the Covid-19 pandemic. We call this law the “Covid Relief Law” or “CRL”. The CRL now allows people in North Carolina to execute their estate documents in isolation with webcams. The sunset on these webcam notarizations and witnessing has now been extended until March 1, 2021.

The CRL offers broad changes to North Carolina law during the pandemic but its changes to North Carolina’s witnessing and notary requirements have opened the door for remote estate document signing.

Practical Impact for Estate Planners, Elder Law Lawyers, and Clients

Now with the CRL in place, as long as people are comfortable with the technology, estate documents can be witnessed and notarized remotely by following the new CRL remote notary and witness requirements. Only the notary and witness pages of most lawyers’ estate documents need to be altered to comply with the CRL. After February 28, 2021, remote witnesses and notaries will no longer be allowed, and notaries and witnesses will need to be in the physical presence of the signer again. If all parties to the document execution are not comfortable with the technology, then other steps will need to be taken to sign valid estate documents.

Changes to Notary Law

The CRL changes the longstanding North Carolina notary requirement that signatures to be in the physical presence of the notary by adding new NCGS §10B-25 “Emergency video notarization”. Section 10B-25 allows North Carolina notaries to use video conference technology until February 28, 2021 to perform remote online video notaries. To use this technology the notary must be satisfied as to the principal’s identity. If the notary is satisfied as to identity, the emergency video notarization must meet the following requirements under NCGS §10B-25(b): the conference between notary and principal must be live, occur in real time, and allow each to see and hear the other and any other participants. The video must be clear enough to see faces and allow the notary to see and read any forms of identification. The conference should allow for recording by some means. Under NCGS §10B-25(c), the principal should verify to the notary that they are physically present in a North Carolina county at the time of the conference and identify the county to the notary. In satisfying the notary of the principal’s identity, the CRL even allows the use of photo ID that expired at the beginning of the crisis but hasn’t yet been renewed.

During the video conference, NCGS §10B-25(e) requires the principal to verbally state what documents are being signed and the notary should observe the signing. The next step in the process depends on if a third-party will require an original wet signature of the signed document. If no wet signature will be required, the principal or principal’s designee shall transmit the signed document by email or fax on the same day of the signing to the notary who will then notarize the document and transmit it back to the principal or principal’s designee on the same day. In cases where a wet signature is required, then in addition to the same-day electronic transmission, the principal shall also send the original document to the notary by mail. The notary shall compare the same-day electronic transmission to the wet signature document received in the mail, and if satisfied, notarize the wet signature as of the day of the video conference. The notarized original should be returned according to the principal’s direction.

Under NCGS §10B-25(g), the notary’s acknowledgement or jurat certificate should include the county where the notary was located during the video notarization, the county where the principal stated they were physically located during the notarization, and the statement “I signed this notarial certificate on ___________(date) according to the emergency video notarization requirements contained in G.S. 10B-25.”

The notary shall record the information about the video notarization in the notary’s journal and at a minimum should include the following information about the video notarization: the day and time of the video conference, the date of completion for the notarial certificate, the first and last name of the principal, the type of notarial act performed, the type of document notarized, the type of identification presented including the issuing agency and identification number, the type of video conference technology used, a statement that the notary and each principal could see and hear each other and whether any other person was present with the principal at the time signature and the name of any other persons present with the principal.

Changes to Witness Law

The CRL now allows people in North Carolina to legally witness document signatures by way of webcam if the following NCGS §10B-201(b) requirements are satisfied: the signature is witnessed in real-time with video and sound, the witnesses sign the witness document for the principal to see during the video conference. The document the witness signs during the conference should have a conspicuous statement indicating it was signed in accordance with the emergency video witnessing requirements. The document should also indicate the North Carolina county location of the witness at the time of witnessing, and the North Carolina counties where the principal and other witnesses were located during the video conference. The new article doesn’t specify what is done with the witness signature documents but specifies that the execution of the witnessed document in counterparts which are later combined is a valid execution (unless a specific clause of the document prohibits the counterpart execution).