IBA Compliance Connection

Your go to source for compliance!

We are looking at what time frame for record retention we need to observe for documents in our Trust Department. We are trying to create some space in our vault. What items can be imaged instead of keeping actual paper documents? What items do we need to retain as paper documents forever?

—

by

admin

Disclaimer: The Electronic Commerce Security Act (ECSA) was repealed and replaced with the Uniform Electronic Transaction Act (UETA), effective June 25, 2021. Please note that this change may affect the continued accuracy of this guidance as it pertains to the ECSA.

The general rule under Illinois law is that electronic versions of documents have “the same force and effect under the laws of this State” as documents in writing. However, this rule does not apply to wills and trusts, which cannot be created or executed electronically. Consequently, you should permanently retain trusts and wills and their codicils and amendments in their original paper form. Attendant documents may be imaged and stored electronically.

We also note that the Illinois Electronic Commerce Security Act (ECSA) requires you to retain records that confer title (including negotiable instruments conferring title) in their original form, unless your electronic storage system “allows for the existence of only one unique, identifiable, and unalterable original with the functional attributes of an equivalent physical instrument, that can be possessed by only one person, and which cannot be copied except in a form that is readily identifiable as a copy.”  Even then, in our view, the best practice would be to also permanently retain such documents (conferring title) in their original paper form.

For resources related to our guidance, please see:

  • Financial Institutions Electronic Documents and Digital Signature Act, 205 ILCS 705/10(a) (“If in the regular course of business, a financial institution possesses, records, or generates any document, representation, image, substitute check, reproduction, or combination thereof . . . that accurately reproduces, comprises, or records the agreement, transaction, act, occurrence, or event . . . [it] shall have the same force and effect under the laws of this State as one comprised, recorded, or created on paper or other tangible form by writing, typing, printing, or similar means.”)
  • Electronic Commerce Security Act, 5 ILCS 175/5-110 (“Information, records, and signatures shall not be denied legal effect, validity, or enforceability solely on the grounds that they are in electronic form.”)
  • Electronic Commerce Security Act, 5 ILCS 175/5-115(b)(2) (“Where a rule of law requires information to be “written” or “in writing”, or provides for certain consequences if it is not, an electronic record satisfies that rule of law… The provisions of this Section shall not apply to any rule of law governing the creation or execution of a will or trust, living will, or healthcare power of attorney…”)
  • Electronic Commerce Security Act, 5 ILCS 175/5-115(b)(3) (Electronic versions of negotiable instruments and other instruments of title must be “created, stored, and transferred in a manner that allows for the existence of only one unique, identifiable, and unalterable original with the functional attributes of an equivalent physical instrument, that can be possessed by only one person, and which cannot be copied except in a form that is readily identifiable as a copy.”)
  • Electronic Commerce Security Act, 5 ILCS 175/5-135 (Electronic record retention requirements that apply when “a rule of law requires that certain documents, records or information be retained . . . .”)