On Monday, in light of the coronavirus pandemic, Arkansas Gov. Asa Hutchinson signed a proclamation that allows certain notaries public to notarize signatures virtually through real-time audio and visual means and allowing witnessing of wills and other documents by real-time audio and visual means.
Before this proclamation, Arkansas law permitted a notary public to notarize a signature only when the person signed the document in the physical presence of the notary or personally acknowledged his or her signature to the notary. The law also required wills to be signed in the physical presence of two witnesses, both of whom were required to sign in the physical presence of the person signing the will and each other.
Notaries public who now are allowed to notarize signatures virtually are Arkansas attorneys, Arkansas title agents, notaries public who are supervised by an attorney or a title agent, and notaries public employed by a financial institution registered with the Arkansas State Bank Department. Both the notary public and the signor must be physically located in Arkansas at the time of signing.
For a document, including a will, to be considered signed in the presence of a witness, the presence and identity of the witness must be validated at the time of signing by a notary public who is an Arkansas attorney, an Arkansas title agent, or who is supervised by either an attorney or a title agent, or a notary public employed by a financial institution registered with the Arkansas State Bank Department. The identity and physical presence of all witnesses and signors in the state of Arkansas must be validated at the time of execution of the document. Wills and other documents may be signed and witnessed in counterparts. Each person may sign a separate sheet of paper, all of which together are considered to be one document.
Real-time audio and visual means are defined by the proclamation to mean technology where all parties can see and hear the other parties simultaneously. Examples of video conference technology include, but are not limited to, Skype, Zoom, FaceTime and other similar technologies.
The governor's proclamation was made under the authority of a 1973 law which gives the governor the authority to declare a disaster and to issue executive orders which have the force and effect of law.
A will may now be signed in the home of the person signing, and the witnesses may be located in their residences, without the necessity of personal contact which risks spreading the coronavirus. A deed, which requires a notarized signature to be recorded, may now be signed in a person's home, and the notary public may witness the singing in his or her residence. The same applies to powers of attorney, which are usually notarized because they are often recorded in the records of deeds and mortgages to prove authority of a person signing as an agent, and other documents which are often notarized, such as trust agreements, certifications of trust, affidavits and pleadings in lawsuits.
Carl A. Crow Jr. is a partner in Crow Durbin & Speights, Attorneys at Law. He is a former Garland County prosecuting attorney, Hot Springs city attorney, and assistant attorney general for the state of Arkansas.
Editorial on 04/03/2020