SB 735
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Third Reader - Revised
Senate Bill 735 (Senator West)
Judicial Proceedings Health and Government Operations
State Government - Notarial Acts - Remote Notarizations
This bill (1) authorizes remote notarial acts with respect to wills and trust instruments;
(2) clarifies the application of specified requirements for credential analysis and identity
proofing as they pertain to remote notarial acts; (3) establishes requirements and
procedures for remote notarial acts involving a tangible record; (4) specifies procedures by
which a notary public may administer an oath to a remotely located individual;
(5) authorizes the Secretary of State to adopt regulations prescribing the methods for
reasonable confirmation of a tangible record; and (6) makes clarifying changes to
communication technology requirements applicable to remote notarizations. Finally, the
bill specifies that the notarization of any document in conformance with specified
executive orders authorizing remote notarization must be deemed valid if the notarization
occurred during the time that the orders were in effect. The bill takes effect June 1, 2021.
Fiscal Summary
State Effect: The bill does not directly affect State finances or operations.
Local Effect: The bill does not directly affect local government finances or operations.
Small Business Effect: Minimal.
Analysis
Bill Summary:
Remote Notarization Involving Tangible Records
Existing requirements relating to remote notarial acts, as they apply to the performance of
a notarial act regarding a tangible record when the record is not physically present before
the notary, may be satisfied by:
the individual signing and sending to the notary, within three business days after the
performance of the notarial act, (1) the tangible record and (2) a specified
declaration; and
the notary (1) capturing by audio-visual recording the individual signing the tangible
record and the declaration and (2) completing the required certificate of notarial act,
as specified.
A declaration signed by a remotely located individual and attached to a record, as specified
under the bill, satisfies a notary public’s obligation to reasonably confirm the record. Upon
performance of the above requirements, the notarial act must (1) be deemed to comply with
the requirement that a certificate of a notarial act be executed contemporaneously with the
performance of the notarial act and (2) be effective on the date on which the declaration is
signed.
For the performance of a remote notarial act regarding a tangible record in counterpart,
specified requirements may be satisfied by (1) the individual signing, during the
audio-visual recording, a counterpart of the tangible record and a counterpart of a specified
declaration and (2) the notary recording the notarial act and completing the required
certificate of notarial act, as specified.
If a remotely located individual is physically unable to sign a declaration, the individual
may direct another individual to sign the individual’s name on the declaration, which must
be revised by inserting a specified statement.
A notary public in the State may, by means of communication technology, take an
acknowledgement of a signature on a tangible record previously delivered to the notary.
Administering of Oaths to Remotely Located Individuals
The bill specifies that a notary public in the State may administer an oath to a remotely
located individual using communication technology by identifying the individual, creating
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an audio-visual recording of the individual taking the oath, and preserving a copy of the
audio-visual recording, as specified.
Current Law: Chapter 407 of 2019, which took effect October 1, 2020, authorized a
notary public located in the State to perform a notarial act using communication technology
for a remotely located individual; however, Chapter 407 did not authorize remote
notarization with respect to wills and trust instruments. When performing a remote
notarization, a notary public may identify a remotely located individual (1) by personal
knowledge; (2) on oath or affirmation from a credible witness, as specified; or (3) by
remote presentation of satisfactory evidence of identification, credential analysis of the
identification credential, and identity proofing of the individual. Identity proofing and
credential analysis must be performed by a reputable third party in accordance with
specified requirements as set forth under Section 18-223 of the State Government Article.
(The bill clarifies that these requirements for identity proofing and credential analysis apply
only when a notary public identifies a remotely located individual by remote presentation
of identification.)
Chapter 407 specifies other various requirements that apply to the performance of a remote
notarial act. Among these, a notary public must be reasonably able to confirm that the
record before the notary public is the same record on which the remotely located individual
made a statement or on which the individual executed a signature. In addition, a notary
public must create an audio-visual recording of the performance of the notarial act and
retain the recording, as specified. Communication technology used by a notary public to
perform remote notarial acts must provide reasonable security measures to prevent
unauthorized access to (1) the live transmission of the audio-visual feeds; (2) the methods
used to perform credential analysis and identity proofing; and (3) the electronic record that
is the subject of the notarial act. A notary public must attach or logically associate the
notary public’s electronic signature and official stamp to an electronic record by use of a
digital certificate in compliance with specified standards (the bill specifies that
requirements relating to digital certificates apply if the notarial act is regarding an
electronic record).
On March 30, 2020, prior to the effective date of Chapter 407, the Governor issued
Executive Order 20.03.30.04 authorizing remote notarizations for the duration of the
COVID-19 state of emergency and catastrophic health emergency. The order was
subsequently amended by Executive Order 20.09.29.01 (which took effect
October 1, 2020, concurrent with the effective date of Chapter 407) specifically
authorizing notaries public in the State to perform remote notarial acts with respect to wills
and trust instruments for the duration of the emergency (and thereby suspending the
provisions of Chapter 407 that preclude remote notarization of wills and trust instruments).
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Under the bill, a notarial act performed in accordance with either of these orders is deemed
valid if the notarization occurred while the order was in effect.
Additional Information
Prior Introductions: None.
Designated Cross File: HB 1265 (Delegate W. Fisher) - Health and Government
Operations.
Information Source(s): Secretary of State; Judiciary (Administrative Office of the
Courts); Register of Wills; Maryland State Bar Association; Department of Legislative
Services
Fiscal Note History: First Reader - March 5, 2021
rh/mcr Third Reader - March 26, 2021
Revised - Amendment(s) - March 26, 2021
Analysis by: Elizabeth J. Allison Direct Inquiries to:
(410) 946-5510
(301) 970-5510
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Statutes affected: Text - First - State Government - Notarial Acts - Remote Notarizations: 18-214 State Government, 1-101 State Government, 18-223 State Government
Text - Third - State Government - Notarial Acts - Remote Notarizations: 18-214 State Government, 1-101 State Government, 18-214.1 State Government, 18-215 State Government, 18-214 State Government, 18-222 State Government, 18-223 State Government, 18-215 State Government