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Law

MD House Bill 1261

Notary Law Update: MD House Bill 1261

State: Maryland

Summary:
House Bill 1261 authorizes electronic wills, authorizes Notaries to use remote notarization to notarize a power of attorney, and contains provisions validating certain documents recorded in the land records, some of which may have been improperly notarized.

Signed:  May 30, 2021

Effective:  October 01, 2021

Chapter: 686

Affects:

Amends Sections 1-101, 4-102, 4-104, 17-101, and 17-110 of and adds Section 4-101 to the Estates and Trust Article; amends Sections 5-601 and 5-602 of the Health-General Article, and amends Section 4-109 of the Real Property Article of the Annotated Code of Maryland.

Changes:
  1. Authorizes electronic wills.
  2. Requires an electronic will to be signed by two witnesses in the physical or electronic presence of each other.
  3. Requires the supervising attorney for an electronic will to create a “certified will” that includes an acknowledgment of the testator and affidavits of the witnesses that must be notarized.
  4. Requires an electronic will or remotely witnessed will to contain an original paper certification signed and acknowledged by the testator in the physical or electronic presence of a Notary, and further prohibits a Notary from being one of the witnesses.
  5. Authorizes a power of attorney to be acknowledged by the principal in the physical or electronic presence of a Notary Public.
  6. Authorizes a Notary Public before whom the principal acknowledges a power of attorney to use communication technology under Section 18-214 of the State Government Article.
  7. Validates the notarization of a power of attorney in conformance with Executive Order 20.03.30.04 (authorizing remote notarizations) if the power of attorney was signed and witnessed during the time that the executive order was in effect and the Notary Public acting under the executive order may have served as one of the witnesses.
  8. Provides that if an instrument was recorded in the land records before January 1, 1973, any failure of the instrument to comply with the formal requisites listed below has no effect, unless the defect was challenged in a judicial proceeding commenced by July 1, 1973.
  9. Provides that if an instrument is recorded in the land records on or after January 1, 1973, whether or not the instrument is executed on or after that date, any failure to comply with the formal requisites listed below has no effect unless it is challenged in a judicial proceeding commenced within six months after it is recorded.
  10. Provides that the failures in the formal requisites of an instrument are: (a) a defective acknowledgment; (b) a failure to attach any clerk's certificate; (c) an omission of a Notary seal or other seal; (d) a lack of or improper acknowledgment or affidavit of consideration, agency, or disbursement; (e) an omission of an attestation; (f) a failure to name any trustee in a deed of trust; or (g) a lack of or defective witness attestation to a power of attorney.
Analysis:

House Bill 1261 authorizes any individual to create and sign their last will as an electronic will or remotely witnessed will. While the majority of the part of House Bill 1261 dealing with electronic wills does not involve a notarization or a Notary, one requirement is that the supervising attorney must create what is called a “certified will” that requires the notarization of an acknowledgment by the testator and affidavits of the witnesses. A Notary who provides the notarization cannot be a witness to the electronic will. House Bill 1261 also authorizes Notaries to use communication technology (remote notarization) to notarize a power of attorney. The remainder of House Bill 1261 deals with the validation of documents that contain one or more “defects,” such as a defective acknowledgment certificate or omission of a Notary seal, among others. We often see states enact “curative” laws such as these when real property documents that have been recorded have certain errors in them.

Read the bill text.

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