Notarization Quick Fact Sheet

Interest Area
General
Elder

EO 2020-74: Encouraging the use of electronic signatures and remote notarization, witnessing, and visitation during the COVID-19 pandemic

By Nicole Shannon
Michigan Elder Justice Initiative
Updated May 6, 2020.

On April 8, 2020 the Governor signed Executive Order 2020-41. The Executive Order allows for electronic signatures and remote notarization, witnessing, and court-ordered visitation in some Probate Court cases. That Executive Order expired May 6, 2020 and was replaced with Executive Order 2020-74.

This document addresses the signing requirements. More information from the Elder and Disability Rights Section and Probate and Estate Planning Section of the State Bar is forthcoming.

What as the law before the EO?

Before the executive order, notarization had to be conducted in person unless it was done by one of five vendors approved by the Michigan Secretary of State. Witnessing documents like wills also had to be done in person.

What does the EO do?

  • All Michigan notaries (outside of the five approved vendors) can now notarize documents using real-time two-way audio/video (“video”) communication.
  • Any requirement that an in-person witness attest to a document can be satisfied using video communication.
  • Financial institutions and registers of deeds may not refuse to record a copy of an electronic record on the ground that it does not have an original signature of a person, witness, or notary, so long as the notary certifies that it is an accurate copy.

When might I need this?

If your clients need to execute affidavits, deeds, powers of attorney, or wills, there is almost certainly a notarization and/or witness requirement. You can now conduct these using two-way audio video technology that allows for recording of all parties for the entire transaction like Zoom. You will want to talk to your IT staff about this. It is my understanding that many versions of Google Hangouts do not allow for recording. Even if they do, they only record the speaker.

Here are some protips that aren’t necessarily required by the EO:

  • Number all documents with the page number and total number of pages (e.g. Page 3 of 9).
  • Note somewhere on the signature page that the document is executed in compliance with EO 2020-41.

How does notarization work under the EO?

You have three options to notarize documents:

  1. The “old fashioned way.” This is an in-person notarization where all parties sign the same physical document.
  2. The “newer fashioned way.” This is an electronic notarization with one of the five vendors approved by the Michigan Secretary of State. The cost is typically about $25 per single document notarization, which may be cost effective given your circumstances. NOTE: Anecdotally, this method has not easily served the needs of our clients.
  3. The “Executive Order way.” This is a little more complicated. Here are some highlights, with a comprehensive checklist at the end.
    • Must be conducted via video where everyone can see and hear each other in real time.
    • The notary must record the entire interaction.
    • The people signing the documents must send the signed document to the notary on the same day of the signing (fax, email, or mail).
    • Once the notary receives the signed document, the notary will then notarize and send them back to the individual seeking notarization.
    • The notarization is considered to have taken place on the day of the video, not the day that the notary physically signs the originals.

How does witnessing work under the EO?

You have three options to witness documents:

  1. The “old fashioned way.” This is an in person witnessing where all parties sign the same physical document at the same time.
  2. The “Executive Order way via a notary.” If your document requires notarization, it may be easiest to include the witnesses during the notarization. For more information, see above and the attached checklist.
  3. The “Executive Order way without a notary.” Again, this is a little more complicated. Here are some highlights, with a comprehensive checklist at the end.
    • It has to be conducted via video where everyone can see and hear each other in real time.
    • The signatory must record the entire signing and keep the recording for at least three years.
    • The signatory must send the signed document to the witnesses within 72 hours of the signing (fax, email, or mail). Note: Under the previous EO the timeline was 24 hours.
    • Within 72 hours of receipt, the witnesses must sign the transmitted copy and return it to the signatory (fax, email, or mail). Note: Under the previous EO the timeline was 24 hours.

 


 

Executive Order Notarization Checklist

During the video signing

  • All parties see and hear each other in real time using audio/video technology
  • The notary records the entire transaction and retains it
  • The individual seeking notarization (and any witnesses) shows satisfactory ID during the video (not merely transmitting before or after)
  • The individual seeking notarization states they are:
    • Physically in Michigan,
    • Signing a document intended for use with a Michigan court, governmental entity, public office, or other entity subject to the jurisdiction of Michigan,
    • Signing a document involving property located in Michigan, OR
    • Signing a document for a transaction substantially connected to this state.
  • All parties sign the document in a manner that will make any subsequent changes tamper evident.

After the video signing, but on the same day

  • The individual seeking notarization or designee sends a legible copy of the entire signed document directly to the notary the same day it was signed. Transmission may be by fax, mail, or electronic means.

When the notary receives the signed document

  • The notary completes the notarization of the document, with the date and time of notarization being the date and time of the video.
  • The notary sends the entire notarized document back to the individual seeing services.
  • Though not explicitly required by the EO, the notary may want to note that it was executed in compliance with Executive Order 2020-72.

Executive Order Witnessing Checklist

Prior to signing:

  • The document must have every page numbered to reflect both the page number of the document and total pages of the document (i.e. Page 3 of 9).

During the video signing:

  • All parties see and hear each other in real time using audio/video technology
  • The signatory records the entire transaction and retains it for at least three years
  • The signatory states they are:
    • Physically in Michigan,
    • Signing a document intended for use with a Michigan court, governmental entity, public office, or other entity subject to the jurisdiction of Michigan,
    • Signing a document involving property located in Michigan, OR
    • Signing a document for a transaction substantially connected to this state.
  • The signatory states what document they are signing
  • The signatory shows each title page and signature page clearly to the witnesses
  • The signatory signs sufficiently up close on the video for the witnesses to observe.
  • Though not explicitly required by the EO, the signatory may want to note that it was executed in compliance with Executive Order 2020-74.

Within 72 hours of signing:

  • The signatory or their designee sends a legible copy of the entire signed document directly to the witness(es) the same day it was signed. Transmission may be by fax, mail, or electronic means.

Within 72 hours of the witnesses receiving the signed document from the signatory:

The witnesses must sign the transmitted copy of the document as witness and return the signed copy of the document to the signatory or their designee via fax, mail, or electronic means.