Remote Notary, Witnessing and Estate Planning are Here to Stay
As a culture, we have gotten used to many areas of our lives moving online over the past year and a half. Virtual birthday parties, baby showers over Zoom and of course online business meetings, have all been integrated as part of our normal everyday life. In the legal field, this can prove difficult. We are used to conducting business in person- notarizing, witnessing document signings and estate planning typically were done at a table with pen and paper. However, many states offered executive orders at the start of the pandemic and throughout that allowed for legal business including remote notary and witnessing as well as Zoom estate planning and signings to occur remotely. As businesses continue to work remotely, more permanent laws have been considered, proposed and soon enacted in order to keep businesses operating.
The notarization process itself is designed to prevent fraud and forgery by having a third-party ensure the signature on a document is authentic, and the signer knows what they are signing and does so voluntarily. Documents that typically require a notarization include healthcare directives, affidavits, powers of attorney, wills and real estate documents. While state laws on notarial acts vary, the key components of the notarization process in all states include personal appearance of the signer before the notary, and verification of the signer’s identity by the notary. Over time, and most recently with the Covid-19 Pandemic, this has changed.
On May 13, 2021, Senate Bill 1625, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2021 (the SECURE Notarization Act), was introduced to authorize and establish minimum standards for electronic and remote notarizations that occur in or affect interstate commerce. (A prior version of the SECURE Notarization Act was introduced in 2020, but was never voted on). If the SECURE Notarization Act becomes law in its current form, it would authorize every notary in the US to perform remote online notarizations (RON) using audio-visual communications and tamper-evident technology in connection with interstate transactions. On July 26, 2021, SB2664 was signed into law as Public Act 102-160. This major revision of the Illinois Notary Public Act authorizes the use of both RIN (Remote Ink Notarizations) and RON (Remote Online Notarizations) in real estate transactions. The legislation is to be effective the later of either the filing of administrative rules by the Illinois Secretary of State or January 1, 2022. Once the statute becomes effective, RIN and RON transactions will likely become very common. In addition, SB0730, the Electronic Wills and Remote Witnesses Act, was signed into law on July 26, 2021. This authorizes remote witnessing in documents other than wills. This legislation is effective immediately.
During the pandemic, Governor Pritzker signed several executive orders suspending and implementing temporary procedures that impacted the trusts and estates practice. He authorized the remote witnessing and notarizing of documents such as wills and powers of attorney for property and heath care via two-way video conferencing. This departure from the traditional way estate plans are executed has prepared the legal field for the new procedures outlined in the Electronic Wills Act.
The Act explains and extends some of the temporary measures, allowing for remote witnessing of wills and other estate planning documents. However, it goes a step further to allow for the execution of electronic wills or those wills “generated, communicated, received, or stored by electronic means for use in an information system or for transmission from one information system to another.” 755 ILCS 6/1-20.
Like a paper will, to be valid under the Act, an electronic will “shall be executed by the testator or by some person in the testator’s presence and at the testator’s direction, and attested to in the testator’s presence by 2 or more credible witnesses.” 755 ILCS 6/5-5(a). The term “presence” is defined under the Act to include physical presence or different physical locations but able to use audio-video communication to know that the testator is signing the document in real time. The most obvious example of audio-visual communication is Zoom, although several other platforms will satisfy this requirement.
The Electronic Wills Act allows for the following scenarios that deviate from the traditional in-person signing and witnessing of paper wills:
- The testator and witnesses are all in the presence of each other, but the testator is signing an electronic will instead of a paper will. Under this scenario, the only deviations from the traditional approach are that the will is not in paper form and electronic signatures of the testator and witnesses are used.
- The testator and witnesses are in separate physical locations, and the testator is signing an electronic will. Under this scenario, the testator and witnesses are using audio-video communication to sign an electronic document. Under the Act, an “audio-video communication” means communication by which persons can hear, see, and communicate with each other in real time using electronic means.
- The testator and witnesses are in separate physical locations, and the testator is signing a paper will using remote witnesses. This is the procedure that many legal professionals adopted during the emergency orders. The will may be signed and witnessed with separate signature pages, attestation clauses, or affidavits forming part of the will. The testator or person appointed by the them must attach all separate signature or pages within 10 business days of the attestation.
As we continue to monitor the potential changes in these laws, know what we are here to answer any and all of your legal questions. Please reach out today for a consultation if you have questions about remote notarizations, witnessing and estate planning: 866-566-9494 or Assistant@clcounsel.com.
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