Public Act 102-160, which was signed into law on July 23, 2021, amends the Illinois Notary Public Act to allow remote notarizations (sometimes called “remote ink notarizations”) and electronic notarizations (sometimes called “remote online notarizations”) for real estate and other transactions. Once these provisions take effect, bankers will be able to obtain electronic notary commissions and notarize customers’ signatures without requiring them to come into the bank or deal with printed documents and wet ink.
Effective Date. Most of the amendments take effect on the later of January 1, 2022, or the date on which the Secretary of State adopts implementing rules.
Three minor provisions instead take effect on July 1, 2022: (1) a provision establishing an Electronic Notarization Fund to defray some of the Secretary of State’s expenses, (2) a new section raising the application fees for notary public commissions, and (3) the repeal of a requirement to record one’s appointment as a notary public with a county recorder.
Current Status of Remote Notarizations in Illinois. Remote notarizations had been temporarily authorized under Illinois law since March 26, 2020 — initially under a COVID-related executive order, which later was confirmed in legislation amending the Electronic Commerce Security Act. In an unfortunate wrinkle, recent legislation repealed the Electronic Commerce Security Act and replaced it with the Uniform Electronic Transactions Act, which does not mention remote notarizations. Consequently, it appears that remote notarizations are not currently permitted in Illinois and will not be permitted until the Secretary of State implements this legislation with an administrative rulemaking.
Remote Notarizations (“remote ink notarizations”). Once implemented, the amended Notary Public Act will allow any commissioned notary public to perform notarial acts remotely and outline requirements for remote notarizations, with some details left to the Secretary of State’s implementing rules.
The guidelines for remote notarizations are similar to those established under the previous executive order and Electronic Commerce Security Act provisions. To conduct a remote notarization, the notary (who must be located in Illinois) must confirm the signer’s identity and perform the notarization via two-way audio-video communication technology that allows the notaries and principals to engage in direct, contemporaneous interaction with the signatory and witness by sight and sound, among other technical requirements for the notarization.
The signatory must attest to being physically located in Illinois and affirmatively state what document they are signing, each page of the document must be shown to the witness in a means clearly legible, and the act of signing must be captured sufficiently up close for the witness to observe. The communication session must also be recorded and preserved by the signatory for three years.
Afterwards, the signatory must transmit a legible copy of the entire signed document directly to the notary by overnight mail, fax, or electronic means no later than the day after the document is signed. The notary must sign the copy as a witness and transmit it back via one of the same methods within twenty-four hours of receipt.
Electronic Notarizations (“remote online notarizations”). In addition to a remote notarization process that still involves paper documents and wet ink, this legislation also establishes a new electronic notary public commission that will allow Illinois notaries to perform purely electronic notarial acts on electronic documents.
Electronic notarizations will require notaries to use sophisticated technologies provided by vendors approved by the Secretary of State. The enhanced technological requirements for electronic notarizations include standards for ensuring the security of the electronic notary public’s electronic signature, electronic seal, journal, and registered devices, and the ability to attach an electronic notarial certificate to electronic documents in a manner capable of independent verification and that renders subsequent changes to the electronic document evident.
The guidelines for conducting electronic notarizations include verifying the signer’s identity and recording the notarization using two-way audio and video conference technology, as well as geographic limitations for the notary (who must be located in Illinois) and the signer (who must be located within the United States, but with some exceptions allowing for international signers). Recordings of electronic notarizations must be kept for seven years (versus three years for remote notarizations). As with remote notarizations, more specific requirements will likely be dictated in the Secretary of State’s future administrative rules.