| Anchor | ||||
|---|---|---|---|---|
|
...
September 16, 2024
| Expand | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| ||||||||||||||
|
...
Applicable Law
Revised Uniform Law on Notarial Acts: In 2020, Wisconsin enacted the Revised Uniform Law on Notarial Acts amendments regarding notarizations for remotely located individuals. These provisions are summarized below.
Wisconsin Administrative Code, Chapter DFI-CCS 25: The Department of Financial Institutions adopted rules implementing the Revised Uniform Law on Notarial Acts provisions on notarizations for remotely located individuals. These rules are summarized below.
Guidance: The Department of Financial Institutions has issued the following guidance on notarial acts for remotely located individuals that is available on its website:
Guidance for Notaries Seeking to Perform Remote Online Notarial Acts (updated November 2022)
Guidance for Individuals Seeking Remote Online Notarial Services (November 2022)
Guidance on Identity Proofing (November 4, 2020)
Guidance on the Performance of Notarial Acts on the Basis of Personal Knowledge (December 10, 2020)
Remote Notary Council: “There is created a remote notary council which is attached to the department of financial institutions under [WS] s. 15.03. (b) The council shall be composed of the following members appointed for 3−year terms:
“1. One member who represents an association of title insurance companies.
“2. One member who represents attorneys who practice real estate law.
“3. One member who represents an association of bankers.
“4. One member who represents the providers of communication technology used to perform a notarial act involving a remotely located individual.
“5. The secretary of financial institutions or the secretary’s designee” (WS 15.185[8]).
The remote notary council is tasked with the following responsibilities:
(a) Adopt standards to implement WS 140.145 (WS 140.145[11][a]).
(b) Review the statutes related to notarial acts for remotely located individuals and recommend to the legislature any changes in the statutes that the council finds necessary or advisable (WS 140.145[11][c]).
(c) Approve or deny applications of providers of communication technology (DFI-CCD 25.04[2] and [3]).
(d) Restrict, limit, suspend, or terminate a provider approval (DFI-CCD 25.04[5]).Technology Systems
Approval of System Providers: Required.
List of Approved Providers: The Department of Financial Institutions maintains a listing of providers whose technology systems have been approved for use by Wisconsin Notaries at https://wdfi.orgapps.dfi.wi.gov/apps/NotaryTechProvider/TechProviderTechProvider.
Approval Requirements: “A provider of communication technology may request approval of the remote notary council by submitting documentation or other evidence to the department, in a form and manner acceptable to the department, that explains all the following:
“(a) How the provider will ensure that notarial acts for a remotely located individual performed on the provider's platform by a notary public of this state comply with the requirements of ss. 140.145 and 140.20, Stats., and this chapter.
“(b) The proposed method of performing a notarial act involving a remotely located individual using the provider's communication technology.
“(c) The proposed method by which a provider's identity proofing will operate to ensure compliance with s. 140.07, Stats.
“(d) Whether the provider's technology and identity proofing processes meet the most current standards of the Mortgage Industry Standards Maintenance Organization.
“(e) The means used to ensure that notarial acts for a remotely located individual are accurate, authentic, resistant to tampering, and tamper-evident.
“(f) The means used to ensure that all parties using the communication technology are viewing the same record, and that all signatures, changes, and attachments to the record are made in real time.
“(g) The means used to ensure that the communication technology is secure from hacking or interception.
“(h) The means used to ensure that a notarial act for a remotely located individual is recorded and adequately preserved for a period of at least seven years after the recording is made.
“(i) The means used to ensure that a notary public is properly instructed and competent to perform a notarial act for a remotely located individual using the provider's communication technology.
“(j) All jurisdictions in which a provider's communication technology has been approved or disapproved for the performance of a notarial act for a remotely located individual.
“(k) A provider's experience utilizing the means, processes, and procedures described in this subsection.
“(l) Any warning letters or complaints received, or disciplinary actions taken against a provider in any other jurisdiction.
“(m) Any pending or adjudicated lawsuits against a provider relating in any way to the performance of notarial acts using the provider's communication technology in any jurisdiction.
“(n) Whether the provider has and will maintain insurance coverage or other security for potential errors or omissions relating to the communication technology or provider's processes.
“(o) Any other information that the department or remote notary council requests and believes is necessary or helpful in evaluating a provider's request for approval” (WAC DFI-CCS 25.04[2]).
“(a) Once the department is satisfied that a provider's application includes the information required in sub. (2), the department shall schedule the application for consideration at a forthcoming meeting of the remote notary council.
“(b) A representative of the applicant with knowledge of its processes and authority to make binding representations on its behalf shall be available to participate in the meeting and respond to questions from remote notary council members. Unless otherwise specified by the remote notary council, the representative may participate by phone or other remote means.
“(c) Upon consideration of the merits of the applicant and application, the remote notary council may approve the application, impose additional conditions or limitations upon approval, deny the application, table the application for further deliberation at a subsequent meeting, or require the applicant to supplement the application with additional explanations, information, or evidence of its ability to ensure compliance with state law.
“(d) Upon approval of a provider's application, the department shall add the provider to a public list of approved providers of communication technology for notarial acts for remotely located individuals” (WAC DFI-CCS 25.04[3]).Notary Knowledge of System: “A notary public of this state may perform a notarial act for a remotely located individual if all the following apply:
“(1) The notary public performs the notarial act by utilizing a communication technology provider that has authorized the notary public to utilize its technology and has been approved pursuant to s. DFI-CCS 25.04, or by utilizing an alternative process that has been approved pursuant to s. DFI-CCS 25.05.
“(2) The notary public has reviewed and understands s. 140.145, Stats., and all guidance published on the department's website regarding the performance of notarial acts for remotely located individuals.
“(3) The notary public is competent with the technologies and processes to be utilized in performing notarial acts for remotely located individuals” (WAC DFI-CCS 25.03).Change or Use Multiple Providers: “Can notaries change technology providers, or become authorized to use multiple providers? – Yes. Notaries are free to change technology providers or to utilize more than one approved provider at a time. The notary must, however, complete the onboarding and training process with each approved provider used” (website, “Guidance for Notaries Seeking to Perform Remote Online Notarial Acts” [November 18, 2022]).
Differences Between Approved Providers: “Are there any differences between the approved technology providers? – Yes. While all approved providers must be willing and able to meet the conditions established by the Remote Notary Council and the Department of Financial Institutions, their business models and service offerings vary widely. Some providers are presently geared toward certain sectors or transactions requiring notarizations (such as real estate closings), while others are designed to accommodate a broader array of notarial acts. Some retain recordings on the notary’s behalf for the full seven years, while others may require the notary to download and retain the recordings themselves. The providers also use different fee structures to support their operations, and some providers make their services available only to organizations rather than individual notaries” (website, “Guidance for Notaries Seeking to Perform Remote Online Notarial Acts” [November 18, 2022]).
Confirmation of the Record: A Notary may perform a notarial act for a remotely located individual if “the notary public is able reasonably to confirm that a record before the notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature” (WS 140.145[3][b]).
Audio-Visual Recording: For the requirement that Notaries create and maintain a recording of each remote notarial act, see “Records of Notarial Acts,” below.
Remotely Located Individual Outside the United States: A Notary may perform a notarial act for a remotely located individual outside the United States if all of the following are satisfied:
(a) The record is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States.
(b) The record involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States.
(c) The act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located (WS 140.145[3][d]).Remote Notarial Acts on Estate Planning Documents
Definition: “Estate planning document” means any of the following:
“1. A will or a codicil.
“2. A declaration of trust or other document creating a trust as provided in [WS] s. 701.0401 or an amendment to a declaration of trust or other document creating a trust.
“3. A certification of trust as provided in [WS] s. 701.1013.
“4. A power of attorney for finances and property.
“5. A power of attorney for health care.
“6. A marital property agreement or an amendment to a marital property agreement.
“7. A written instrument evidencing a nonprobate transfer pursuant to [WS] s. 705.10, 705.15, 705.18, or 766.58 (3) (f).
“8. A declaration to health care professionals.
“9. An authorization for final disposition.
“10. An authorization for use and disclosure of protected health information.
“11. An instrument of disclaimer under s. 854.13.
“12. An instrument exercising a power of appointment under [WS] ch. 702” (WS 140.147[1][a]).Legal Effect: “An estate planning document may not be denied legal effect or enforceability relating to a transaction solely because a notarial act was performed in compliance with this section” (WS 140.147[2][a]).
Procedures for Remote Notarial Act: “For purposes of signing an estate planning document, a remotely located individual may comply with s. 140.06 by appearing before a notary public via 2-way, real-time audiovisual communication technology if all of the following requirements are satisfied:
“(a) The signing is supervised by an attorney in good standing licensed to practice law in this state. The supervising attorney may serve as the notary public.
“(b) The remotely located individual attests to being physically located in this state during the 2-way, real-time audiovisual communication.
“(c) The notary public attests to being physically located in this state during the 2-way, real-time audiovisual communication.
“(d) The remotely located individual positively confirms the remotely located individual’s identity. If the remotely located individual is not personally known to the notary public and the supervising attorney, the remotely located individual shall provide satisfactory evidence of the remotely located individual’s identity as provided in s. 140.07.
“(e) The remotely located individual identifies anyone else present in the same physical location as the remotely located individual. If possible, the remotely located individual shall make a visual sweep of the remotely located individual’s physical surroundings so that the notary public and the supervising attorney can confirm the presence of any other persons.
“(f) The remotely located individual displays the estate planning document, confirms the total number of pages and the page number on which the remotely located individual’s signature is to be affixed, and declares to the notary public and the supervising attorney that the remotely located individual is 18 years of age or older, that the document is the remotely located individual’s estate planning document, and that the document is being executed as a voluntary act.
“(g) The remotely located individual, or another individual 18 years of age or older authorized to sign on behalf of the remotely located individual at the express direction and in the physical presence of the remotely located individual, signs the estate planning document in a manner that allows the notary public and the supervising attorney to see the signing. If the estate planning document is signed by someone on behalf of the remotely located individual, the signing shall comply with s. 140.09.
“(h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the remotely located individual, the notary public, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time.
“(i) The estate planning document indicates that it is being executed pursuant to this section” (WS 140.147[3][a]-[g]).Transmission of Estate Planning Document: One of the following 3 scenarios must apply:
“1. The remotely located individual, or another person at the direction of the remotely located individual, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original estate planning document to the supervising attorney within a reasonable time after the signing. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original estate planning document to the notary public within a reasonable time. The notary public then performs the intended notarial act and forwards the entire original estate planning document by personal delivery or U.S. mail or commercial courier service to the supervising attorney within a reasonable time.
“2. The remotely located individual, or another person at the direction of the remotely located individual, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original estate planning document to the supervising attorney within a reasonable time after the signing and transmits by facsimile or electronic means a legible copy of the entire signed estate planning document directly to the notary public within a reasonable time after the signing. The notary public then performs the intended notarial act and personally delivers or transmits by U.S. mail or commercial courier service the entire signed copy of the estate planning document to the supervising attorney within a reasonable time. The signed original and signed copy together shall constitute one original document unless the supervising attorney, within a reasonable time after receiving the signed original and signed copy, compiles the signed original and signed copy into one document by attaching the page or pages containing the notarial act to the original signed by or on behalf of the remotely located individual, in which case the compiled document shall constitute the original.
“3. The remotely located individual, or another person at the express direction of the remotely located individual, and the notary public sign identical copies of the original estate planning document. The remotely located individual, or another person at the direction of the remotely located individual, and the notary public personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after the signing and performance of the notarial act. All of the originals together shall constitute one document unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the page or pages containing the notarial act to the original signed by or on behalf of the remotely located individual, in which case the compiled document shall constitute the original.Affidavit of Attorney: The supervising attorney must complete and attach to the estate planning document an affidavit of compliance that contains the following information (WS 140.147[3][k]:
The name and residential address of the remotely located individual.
The name and residential or business address of the Notary.
The address within Wisconsin where the remotely located individual was physically located at the time that the estate planning document was signed by the remotely located individual or another individual on behalf of the remotely located individual.
The address within Wisconsin where the Notary was physically located at the time the Notary witnessed the remotely located individual’s signing of the estate planning document.
A statement that the remotely located individual and Notary were known to each other and the supervising attorney or a description of the form of identification used to confirm the identity of the remotely located individual.
The identity of anyone else present in the same physical location as the remotely located individual during the signing.
Confirmation that the remotely located individual declared that the remotely located individual is at least 18 years of age, that the document is the remotely located individual’s estate planning document, and that the document was being executed as the remotely located individual’s voluntary act.
Confirmation that the Notary and the supervising attorney were able to see the remotely located individual, or an individual at least 18 years of age or older at the express direction and in the physical presence of the remotely located individual, sign, and that the remotely located individual appeared to be 18 years of age or older and acting voluntarily, if applicable.
A description of the audiovisual technology used for the signing process.
If the estate planning document was not signed in counterpart, a description of the method used to forward the estate planning document to the Notary and to the supervising attorney upon completion of the signing process.
If the estate planning document was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document.
The name, state bar number, and business or residential address of the supervising attorney.
Any other information that the supervising attorney considers to be material with respect to the remotely located individual’s capacity to sign a valid estate planning document, the remotely located individual’s and notary public’s compliance with this section, or any other information that the supervising attorney deems relevant to the signing of the estate planning document.
See “Certificate of Notarial Act,” below for the notarial certificate form that may be used for a remote notarization of an estate planning document.
...