Guidance on Remote Notarization & Witnessing Under EO 2020-41

Cadillac attorney Nathan Piwowarski, who has helped lead the SBM Probate & Estate Planning Section’s efforts to address remote notarization and witnessing during the state of emergency, has provided members with a comprehensive checklist for handling these issues under Executive Order 2020-41. Please note that notary and witness requirements are combined into one list. He also provided guidance on notary certification under the Order. Both appear below:

Remote Notary & Witness Checklist

Before Conducting the Signing

  • Confirm that the signer can use Zoom with video.
  • Inform the signer that the video must be recorded.
  • Confirm that the document has footers on every page. "Page X of Y."
  • Confirm that the signer, notary, and any witnesses will be able to physically sign the document while the video is happening.
  • Set up document so that each person is signing on a separate counterpart page.

At the Signing Conference

  • Hit "record." A few minutes of small talk are needed for the video stream/recording to be of reliable quality.
  • Announce the purpose of the conference.
  • Introduce the signer, notary, and the witnesses.
  • Ask the signer to show her driver's license or other ID.
  • Confirm that signer is physically located in the State of Michigan (special rules apply if the signatory is not physically located in the State of Michigan).
  • Confirm that each participant can hear and see the others.
  • Identify the first document to be signed. State the number of pages. Have the signer hold the title page up to the camera. Have him/her sign. Have the signer hold the signature page up to the camera. Repeat for every document.
  • Ask the signer to immediately send a legible copy of the entire document by fax, mail, or electronic means (e.g., email). Tell the signer you cannot sign the notary or witness block until you received that document.
  • Tell the signer that you are going to review the recording when the Zoom conference is done, and that it will be necessary to re-acknowledge the documents if the recording didn't work.

Immediately After the Signing Conference

  • Confirm that recording has been saved to network drive (3-year requirement for witnessing).
  • Add an entry to journal of notarial acts (only as to notarizations; 10-year retention requirement).
  • Play the recording to make sure it covers all of the elements described above. If not, you will need to redo the signing and recording.

After Receiving the Signed Document

  • Confirm that the signer has transmitted the entire document and that it's legible.
  • Sign the notary and witness block.
  • Transmit a copy of the fully signed document to the signer.

Notary Certification Under Executive Order No. 2020-41

I remotely notarized this document under Michigan Executive Order No. 2020-41 and certify:

  1. The signatory signed this document while I was observing the signatory through a two-way real-time audiovisual technology that allowed direct, contemporaneous interaction by sight and sound between the signatory and me.
  2. The two-way real-time audiovisual technology was be capable of creating an audio and visual recording of the complete notarial act and such recording was made and retained as a notarial record in accordance with sections 26b(7) to 26b(9) of the Michigan Law on Notarial Acts, MCL 55.286b(7) to 55.286b(9).
  3. The individual seeking my services and any required witnesses, if not personally known to me, presented satisfactory evidence of identity (e.g., a valid state-issued photo identification) to me during the video conference; they did not merely transmit that proof prior to or after the transaction, to satisfy the requirements of the Michigan Law on Notarial Acts, MCL 55.261 et seq., and any other applicable law.
  4. The signatory affirmatively represented either that the signatory was physically situated in the State of Michigan, or that the signatory was physically located outside of Michigan's geographic boundaries and that either: (a)The document is intended for filing with or relates to a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of this state; or (b)The document involves property located in the territorial jurisdiction of this state or a transaction substantially connected to this state.
  5. If the signatory was physically located outside of Michigan's geographic boundaries, I do not have actual knowledge that the signatory's act of making the statement or signing the document was prohibited by the laws of the jurisdiction in which she or he was physically located.
  6. The signatory, any required witnesses, and I have affixed our signatures to the document in a manner that renders any subsequent change or modification of the remote online notarial act to be tamper evident.
  7. The signatory or the signatory's designee transmitted by fax, mail, or electronic means a legible copy of the entire signed document directly to me on the same date it was signed.
  8. Upon receiving a legible copy of the document with all necessary signatures, I notarized the document and transmitted it back to the signatory.
  9. I have certified the official date and time of the notarization as of the date and time when I witnessed the signatory's signature via two-way real-time audiovisual technology as required under the Executive Order.

My full notarial certification is on the following page; the foregoing representations are incorporated into that certification.

____________________
[Notary Name]

 

[Signatory's Name] acknowledged this document before me on [date of original signature--not the date the notary completes this block]. At the time of the acknowledgment, this person was located in [signatory's county of physical presence], Michigan, and I was located in [notary's county of physical presence], Michigan. This document was notarized under State of Michigan Executive Order No. 2020-41; my representations regarding the circumstances of this notarial act are detailed in the preceding page of this document and are incorporated by reference into this certification.

______________________
[Notary Name]

Notary public, State of Michigan,
County of [notary's county of commission]
My commission expires [commission expiry]
Notary located in [notary's county of physical presence]
Person making acknowledgment located in [signatory's county of physical presence], Michigan