By: Jimmy Dupuis

In response to the COVID-19 disaster, Texas Governor Greg Abbott issued two orders allowing parties to notarize certain documents without a physical appearance before a notary public.  The orders suspend multiple statutes that require a face-to-face meeting, and they set out procedures that must be followed using video conference technology.

Estate Planning Documents

The first order was issued on April 8, 2020 and will remain in effect until terminated by the Office of the Governor or until the March 13, 2020 disaster declaration is lifted or expires.  It provides that parties may use video conference technology to notarize certain estate planning documents, including:

  • self- proving affidavits for wills;
  • durable powers of attorney;
  • medical powers of attorney;
  • directives to physicians; and
  • oaths of executors, administrators, and guardians.

The order suspends the following statutes to the extent necessary to allow for appearance before a notary public via video conference:

  • Estates Code § 251.104(b)
  • Estates Code § 251.1045(a)
  • Estates Code § 751.0021(a)(4)
  • Health & Safety Code § 166.154(b)
  • Health & Safety Code § 166.032(b-1)
  • Estates Code § 305.054
  • Estates Code § 1105.052

According to the order, documents executed while the order is in effect will be valid, including after the termination of the order, if the following procedures are employed:

  • A notary public shall verify the identity of a person signing a document at the time the signature is taken by using two-way video and audio conference technology.
  • A notary public may verify identity by personal knowledge of the signing person, or by analysis based on the signing person’s remote presentation of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the person.
  • The signing person shall transmit by fax or electronic means a legible copy of the signed document to the notary public, who may notarize the transmitted copy and then transmit the notarized copy back to the signing person by fax or electronic means, at which point the notarization is valid.

Note that this order does not address statutory requirements requiring wills to be witnessed by two people in the “conscious presence” of the testator.

Even though the order states that documents executed in compliance with the foregoing shall remain valid after the termination of the suspension of the applicable statutes, you should consult with your attorney about the advisability of re-executing any documents signed utilizing the procedures outlined above.

Real Estate Documents

This order was issued on April 27, 2020 and will remain in effect until the earlier of May 30, 2020 or the termination of the March 13, 2020 disaster declaration.  It suspends section 121.006(c)(1) of the Texas Civil Practice & Remedies Code to the extent necessary to allow for appearance before a notary public for the purpose of acknowledging real-estate instruments via video conference.

According to the order, documents executed while the order is in effect will be valid if the following procedures are followed:

  • A notary public shall use two-way audio-video communication technology that allows for direct and contemporaneous interaction between a person signing a document and the notary public by sight and sound.
  • A notary public shall verify the identity of a signatory at the time the signature is taken by using two-way audio-video communication technology. A notary public may verify identity by:
    • personal knowledge of the signatory;
    • analysis based on the signatory’s remote presentation of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the signatory, and is of sufficient quality to allow for identification; or
    • an introduction of the signatory by oath of a credible witness who personally knows the signatory, and who is personally known to the notary public.
  • During the two-way audio-video communication:
    • the notary public shall attest to being physically located in Texas;
    • the signatory shall attest to being physically located in Texas;
    • the signatory shall affirmatively state what documents are being signed; and
    • the signatory’s act of signing shall be close enough to the camera for the notary public to observe it clearly.
  • A recording of the two-way audio-video communication of the notarial act shall be kept by the notary public for two years from the date of the notarial act.
  • The signatory shall send the original signed documents by courier, U.S. Mail, or overnight carrier directly to the notary public for the notary public to sign and to affix the official stamp or seal.
  • The official date and time of the notarization shall be the date and time when the notary public witnessed the signatory signing the documents during the two-way audio-video communication.
  • The documents shall include, whether in a notarial certificate, a jurat, or an acknowledgement, language substantially similar to the following: “This notarization involved the use of two-way audio-video communication pursuant to the suspension granted by the Office of the Governor on April 27, 2020, under section 418.016 of the Texas Government Code.”

Note that this order states that it does not prevent a traditional notarization or an online notarization under chapter 406 of the Texas Government Code.  Although the first order, applicable to estate planning documents, does not contain similar language, the same would presumably apply.