Until recently, New Jersey law required notary services to be performed in-person. However, with the outbreak of COVID-19 causing residents to self-isolate and notary offices to close, it has become much more challenging to get documents notarized. As a result, it is increasingly difficult to proceed with legal and financial transactions.
To deal with this obstacle to legal and financial transactions created by the pandemic, the notary law in New Jersey has been drastically changed. New law (Assembly Bill, No. 3903 / Senate Bill, No. 2336) allows notaries public, attorneys and other officials to notarize documents remotely by audio-video transmission during the COVID-19 public health emergency, but only if certain conditions are met. The notary no longer must be physically present to perform notarial duties. The sponsors of the new law hope that, by allowing notary services to be performed online, necessary transactions can move forward during the COVID-19 pandemic.
The new law, passed by the New Jersey Senate and Assembly and subsequently signed by the Governor, authorizes remote notarial acts, thereby permitting last wills and testaments, powers of attorney and other legal documents to be notarized remotely by notaries public, attorneys and other officials using communication technology for the duration of the public health emergency. Unfortunately, the new law does not allow legal documents to be witnessed remotely. Therefore, all witnesses must be personally present when documents are signed. If the witnesses are present with the signatory and the notary or other officer witness the signatory and the witnesses sign the estate and/or other documents on a video, then the notary or other official can notarize the signatures of all signers, both the signatory and all witnesses.
During the video conference, a notary public, an attorney at law or an officer authorized to take oaths, affirmations and affidavits may perform notarial acts using communication technology for a remotely located individual if the person who will perform the remote notarial act: (a) has personal knowledge of the identity of the individual; (b) has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public or officer; or (c) has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identification. The valid photo identification must be produced during the video conference and may not be transmitted before or after the conference.
The notary public or officer must create an audio-visual recording of the performance of the notarial act. The recording must be retained for a period of at least 10 years after the recording is made.
Under the new law, a certificate must be affixed to the document by the notary or officer which indicates that the document was notarized using communication technology.
The change in notary procedures allows commerce to continue without contributing to the spread of COVID-19. For example, deeds, which are legal documents that transfer real estate from seller to buyer, must be notarized. The audio-video notarization allows real estate closings to continue without violating social distancing rules.
The new law takes effect immediately and expires upon cancellation of Executive Order 103 by the Governor.
Senate Bill No. 2336 is attached here –
Assembly Bill No. 3903 is attached here – New Jersey-2020-A3903-Amended [Markup Styles for House and Senate Bills: [Brackets] indicate matter deleted from existing law. Underlining indicates amendments to bill. Strike out indicates matter stricken from the bill by amendment or deleted from the law by amendment.]
UPDATED ON APRIL 16, 2020 – The Administrative Office Of the Courts issued a New Law Advisory to the Assignment Judges of the various counties in New Jersey describing the new law allowing remote notarial Acts. The New Law Advisory is attached here –
UPDATED ON APRIL 16, 2020 – Counsel in Union County received the following advisory describing how the new remote notary law will be implemented by the Union County Surrogate:
The Governor has signed into law the ability to avoid having papers physically signed in front of a Notary Public during the pandemic. The law allows for signatures to be done either remotely by video conference, when someone has personal knowledge of the signatory or in situations when the person notarizing the document has “satisfactory evidence” of the identity of the signatory. This can be achieved by having the person sign the qualifying document and mail it back with a copy of their driver’s license, passport or other form of picture ID with a signature.
The Surrogate is authorizing us to receive signed qualification papers from guardians without a notary signature. When the guardians are the parents of an incapacitated person I am not requiring them to provide picture ID’s.
For other guardians that are related to the incapacitated person such as a son, cousin, brother, I would simply require a copy of a photo ID. Again, this can be done by them taking a picture of the ID and emailing it to me along with the signed qualification papers. I’m not going to keep the ID, just want to make sure the signatures are similar.
Please let your clients know that if they have received the guardianship qualification papers and are waiting to get them notarized, they should forgo the notary and just email them to me and mail the original to the Surrogate’s office to my attention.
I want to try and process the paperwork sooner than later and get these guardians the Letters and Certificates as soon as possible.
Let me know if you have any questions.
Lisa Taylor Brophy, Esq., Counsel, Union County Surrogate
Suggestions for the form of the acknowledgement when documents are notarized remotely:
Suggestion No. 1:
STATE OF NEW JERSEY
COUNTY OF ______________
Subscribed, sworn to and acknowledged before me via Zoom Communication Technology* by [Testator], the Testator, and subscribed and sworn to before me by the witnesses, this ____ day of _______________, 2020.
____________________________________
Attorney at Law, State of New Jersey
*On March 9, 2020, Governor Philip D. Murphy of the State of New Jersey issued Executive Order 103, declaring a public health emergency. On March 21, 2020, Governor Murphy issued Executive Order 107, ordering citizens to remain at home. On April 14, 2020, Governor Murphy signed Assembly Bill 3903 into law as P.L. 2020, c. 26, stating that an “officer authorized to take oaths, affirmations and affidavits under R.S.41:2-1 or to take acknowledgements under R.S.46:14-6.1 may perform notarial acts using communication technology” provided certain safeguards as set forth in the law were observed.
I certify that, as an “officer authorized to take oaths, etc.”, I have complied with the requirements of P.L. 2020, c. 26 in order to take such oaths using communication technology, and will maintain the recording required under the law. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.
Date:
Suggestion No. 2:
I HEREBY CERTIFY that, on this ____day of ____________, 2020, before me, the subscriber, an Attorney at Law in the State of New Jersey, using communication technology pursuant to A-3903 signed into law on April 15, 2020, and in full compliance therewith, appeared _____________________ , who I am satisfied is the person in the within instrument named, and who acknowledged the foregoing to be his/her act and deed.
UPDATED ON APRIL 24, 2020 – Attached is an article entitled “What You Need To Know About NJ’s Temporary, Remote Notary Law” which is reproduced from the New Jersey Law Journal’s Law.com website on April 24, 2020 at https://www.law.com/njlawjournal/2020/04/23/what-you-need-to-know-about-njs-temporary-remote-notary-law/
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