On March 26, 2020, the Governor issued executive order 2020-14 involving witnessing of documents in Illinois.
Section 1. During the duration of the Gubernatorial Disaster Proclamation related to the outbreak of COVID-19, the requirement that a person must “appear before” a Notary Public commissioned under the laws of Illinois pursuant to the Illinois Notary Act, 5 ILCS 312/6-102, is satisfied if the Notary Public performs a remote notarization via two-way audio-video communication technology, provided that the Notary Public commissioned in Illinois is physically within the State while performing the notarial act and the transaction follows the guidance posted by the Illinois Secretary of State on its website.
Section 2. During the duration of the Gubernatorial Disaster Proclamation related to the outbreak of COVID-19, any act of witnessing required by Illinois law may be completed remotely by via two-way audio-video communication technology, provided that:
- The two-way audio-video communication technology must allow for direct, contemporaneous interaction between the individual signing the document (“the signatory”) and the witness by sight and sound;
- The two-way audio-video communication technology must be recorded and preserved by the signatory or the signatory’s designee for a period of at least three years;
- The signatory must attest to being physically located in Illinois during the two-way audio-video communication;
- The witness must attest to being physically located in Illinois during the two-way audio-video communication;
- The signatory must affirmatively state on the two-way audio-video communication what document the signatory is signing;
- Each page of the document being witnessed must be shown to the witness on the two-way audio-video communication technology in a means clearly legible to the witness and initialed by the signatory in the presence of the witness;
- The act of signing must be captured sufficiently up close on the two-way audio-video communication for the witness to observe;
- The signatory must transmit by fax or electronic means a legible copy of the entire signed document directly to the witness no later than the day after the document is signed;
- The witness must sign the transmitted copy of the document as a witness and transmit the signed copy of the document back via fax or electronic means to the signatory within 24 hours of receipt; and,
- If necessary, the witness may sign the original signed document as of the date of the original execution by the signatory provided that the witness receives the original signed document together with the electronically witnessed copy within thirty days from the date of the remote witnessing.
Section 3. All provisions of Section 5-120(c) of the Electronic Commerce Security Act, 5 ILCS 175/5-120(c), which prohibits electronic signatures on certain documents, remain in full effect.
Section 4. During the duration of the Gubernatorial Disaster Proclamation related to COVID-19, notwithstanding any law or regulation of the State of Illinois to the contrary, absent an express prohibition in a document against signing in counterparts, all legal documents, including deeds, last wills and testaments, trusts, durable powers of attorney for property, and powers of attorney for health care, may be signed in counterparts by the witness(es) and the signatory. A Notary Public must be presented with a fax or electronic copy of the document signature pages showing the witness signatures on the same date the document is signed by the signatory if the Notary Public is being asked to certify to the appearance of the witnesses to a document.
Here are key provisions of the executive order and guidance:
- The remote notarial act must be done by two-way, real time audio-video communication that allows for direct interaction between the notary and the signer.
- Signer must attest that they are physically in Illinois and state what they are signing.
- The resolution of the audio-video connection must be of sufficient quality for the notary to properly examine the signer’s identification credentials.
- A recording of the remote notarization must be retained by the notary for at least 3 years.
- The signer must show the Notary each and every page of the document being signed. The signer also should initial each page to ensure that the document is complete.
- The signer must fax or send by electronic means the signed document requiring notarization to the Notary no later than the day, and the Notary must send the completed notarized document back to the signer by fax or electronic means within 24 hours.
The United States Congress is now considering national legislation in this regard. https://www.congress.gov/bill/116th-congress/senate-bill/3533: “Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020”