Remote Notary, Witnessing and Estate Planning are Here to Stay

Adapting to Online Legal Practices

As our society transitioned to online interactions over the last year and a half, the legal profession encountered distinct hurdles. Historically dependent on face-to-face practices such as notarization and document signings, the move to remote operations proved to be a challenge. In response to the pandemic, numerous states enacted executive orders that permitted remote notarization and virtual estate planning, enabling essential legal functions to continue despite physical distancing. As remote work persists, there is a growing push for permanent regulations to support sustained legal operations in this evolving landscape.

Notarizations

The notarization process prevents fraud and forgery by having a third party verify the authenticity of a signature and the signer’s voluntary consent. Documents requiring notarization include healthcare directives, affidavits, powers of attorney, wills, and real estate documents. While state laws vary, key components include the signer’s personal appearance before the notary and identity verification. This process has evolved, especially during the Covid-19 pandemic.

New Legislation on Remote Notarizations and Electronic Wills

On May 13, 2021, Senate Bill 1625, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2021 (SECURE Notarization Act) was introduced to authorize and establish minimum standards for electronic and remote notarizations that occur in or affect interstate commerce. 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.

Electronic Wills

The Electronic Wills Act

The Act extends temporary measures for remote witnessing of wills and estate planning documents, allowing for electronic wills. These wills are valid if generated, communicated, received, or stored electronically (755 ILCS 6/1-20).

An electronic will is valid when the testator executes it or directs another to do so in their presence, with two or more credible witnesses attesting. “Presence” includes being physically together or in separate locations using real-time audio-video communication, such as Zoom or other platforms.

Scenarios for Electronic Wills

The Electronic Wills Act introduces several situations that move away from the conventional methods of in-person signing and witnessing associated with paper wills.

We are Here to Help

As we continue to monitor potential changes in these laws, please know that we are here to answer any and all of your legal questions. If you have questions about remote notarizations, witnessing, or estate planning, please reach out today for a consultation at 312-344-3644 or Contact@jlonglaw.com.