Remote Electronic Notary Act

As discussed in last year's advisory, the North Carolina Remote Electronic Notary Act (referred to as RENA or the Act) was enacted on July 8, 2022. This Act permanently codified remote electronic notarization (REN) and restored North Carolina's "temporary" emergency video notarization and remote video witnessing (EVN). The Act initially provided that the temporary EVN laws would expire on June 30, 2023, when the REN provisions became effective. This one-year period was intended to give the North Carolina Secretary of State time to make preparations and adopt relevant rules and regulations to implement the law.

On June 23, 2023, Governor Roy Cooper enacted amendments to the Notary Act under North Carolina General Statutes (NCGS) Chapter 10B. These amendments are generally changes to RENA, as well as responses to public comments to the North Carolina Secretary of State's Advance Notices of Proposed Rulemaking and Requests for Public Comment. Below is a summary of the most important changes:

Extension of Emergency Video Notarization and Emergency Video Witnessing and Delay of Remote Electronic Notarization. The effective date for "permanent" REN was changed from July 1, 2023, to July 1, 2024. As a result, the "temporary" EVN rules were extended until June 30, 2024. The EVN provisions were not extended past this date. Currently, notaries may not perform Remote Electronic Notarizations until the rules implementing the Act have been adopted. As of the date of this publication, rulemaking is still in progress. Therefore, there is currently no remote electronic notarization, emergency video notarization, or remote witnessing provisions in effect.

As noted in last year's advisory, there are several important differences between RENA and remote notarization and witnessing under EVN:

• EVN allows the execution of estate planning documents, but RENA specifically excludes wills and trusts. EVN allows for remote witnessing, but RENA does not include a provision for remote electronic witnessing that applies after June 30, 2024. Therefore, remote video witnessing is currently not permitted.

Changes to Journal Requirements. The Act required all notaries to maintain a journal of all notarial acts performed. This requirement applies to all notaries, not just electronic notaries. However, S.L. 2023-124, which was signed into law on September 28, 2023, provides that only an electronic notary who performs a remote electronic notarization shall maintain an electronic journal. Other notaries are not required to maintain a journal.

Remote Notary Authorization Changes. The amendment modifies various definitions sections to clarify that an electronic notary is a notary authorized to perform in-person electronic notarial acts as well as remote electronic notarial acts, and also adds defined terms for geolocation, remotely located principal and self-attestation. The Act also requires that an electronic notary must register with the Secretary before performing any electronic notarial act.

• There are certain documents that an electronic notary is barred from notarizing. Death beneficiary forms that require acknowledgment have been removed from this list of documents. Therefore, the amended list of excluded documents includes: A self-proved will executed pursuant to Article 4A of Chapter 31 of the General Statutes.
• A revocable or irrevocable trust or any other document amending the same except for a certification of trust or similar document. A codicil to a will. Any document related to the relinquishment of parental rights under Article 3 of Chapter 48 of the General Statutes.

Spousal and Child's Allowance Updates

Session Law 2023-120 was signed into law on September 14, 2023, updating the spousal and child's allowance statutes (i.e., years allowances). Generally, the updated statutes aim to provide a simplified procedure for the filing of petitions and awarding of allowances. Among other changes, the new law also confirms that a surviving spouse has priority in the satisfaction of an allowance if multiple requests are made. The new law also provides that the child's allowance is available to all children under age 21 and increases the child's allowance to $10,000. These new laws were effective on March 1, 2024, and apply to decedents dying on or after March 1, 2024.

Treatment of Former Spouses in Will and Trust Following Divorce

Session Law 2023-120 sought to equalize the treatment of divorced spouses in a will under North Carolina law and under the North Carolina Uniform Trust Code. Pursuant to new NCGS 31-5.4, after a divorce, a former spouse will be deemed to have predeceased the testator for all purposes under a will. The updated law provides that the statute does not apply if the spouses remarry each other before the death of the testator. In addition, the statute does not apply if the testator executes a subsequent valid will or other testamentary document that makes express reference to the will and that modifies the will. The corresponding section of the North Carolina Uniform Trust Code (Section 36C-6-606) was updated to conform to the new NCGS 31-5.4.

In addition, S.L. 2023-120 adds a provision stating that the statute does not apply to a revocable trust if the settlor executes a valid amendment to the revocable trust after a divorce. This language conforms to the updated NCGS 31-5.4. The law also carried forward the provision from the former statute that the statute will not apply if the spouses remarry each other before the settlor's death.

These new laws became effective on March 1, 2024, and apply to wills probated on or after that date.