The Illinois Governor authorized the use of remote online notarizations in Executive Order 2020-14 (EO-14), issued during a Gubernatorial Disaster Proclamation related to COVID-19.
EO-14 provides that Section 6-102 of the Illinois Notary Act (requiring signatories to appear before a notary) may be satisfied with two-way audio video communication technology — provided the notary and signatory are physically located in Illinois during the two-way audio video communication and the transaction follows guidance issued by the Illinois Secretary of State (SoS) on remote notarizations. Using the two-way audio video communication technology, the signatory must show the notary each page of the document being witnessed, and the signatory must initial each page. The document then must be transmitted to the notary by fax, electronic means, or overnight mail.
However, EO-14 does not allow notaries to electronically sign and affix their seal to documents or for signatories to electronically sign documents. The SoS guidance provides that a “remote notarization . . . contains the notary’s signature, seal, title and commission, and expiration date” and “otherwise conforms to the requirements for an acknowledgment, verification on oath or affirmation, or verification of witness or attestation under the laws of this State.” Section 6-103 of the Illinois Notary Act provides that “at the time of the notarial act, a notary public shall officially sign every notary certificate and affix the rubber stamp seal clearly and legibly using black ink, so that it is capable of photographic reproduction.” There are no provisions in EO-14 or the SoS guidance indicating that this requirement may be satisfied electronically.
The SoS Department of Index, Notary Services Division, also has confirmed that while remote notarizations are allowed under EO-14, all other provisions of the Illinois Notary Act remain in place, including the requirement that documents be signed and stamped. The Notary Services Division also has confirmed that it does not currently allow electronic signatures to be notarized. Consequently, we believe notaries still must comply with the requirement to “officially sign every notary certificate and affix the rubber stamp . . . using black ink” on documents received electronically or by fax and witnessed with two-way audio video communication technology.
Additionally, we note that for remote online notarizations, there likely will be a delay between the notarial act (the act of witnessing a signature) and the signing and stamping of the document, since EO-14 recognizes that a document witnessed using video conferencing technology may be transmitted to the notary by fax, electronic means, or overnight mail. We are waiting on confirmation from the Notary Services Division that this delay does not affect the above analysis.
For resources related to our guidance, please see:
- Illinois Executive Order 2020-14, Section 1 (March 26, 2020) (“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.”)
- Illinois Notary Public Act, 5 ILCS 312/6-102 (“(a) In taking an acknowledgment, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the notary and making the acknowledgment is the person whose true signature is on the instrument. (b) In taking a verification upon oath or affirmation, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the notary and making the verification is the person whose true signature is on the statement verified. (c) In witnessing or attesting a signature, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the notary and named therein.”)
- Illinois Executive Order 2020-14, Section 2 (March 26, 2020) (“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:
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f. 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;
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h. 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;
i. 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,
j. 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.”)
- Illinois Executive Order 2020-33 (April 30, 2020) (“Executive Order 2020-14, as amended below, is re-issued in its entirety and extended through May 29, 2020.
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h.The signatory must transmit by overnight mail, 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;
i. The witness must sign the transmitted copy of the document as a witness and transmit the signed copy of the document back via overnight mail, fax, or electronic means to the signatory within 24 hours of receipt; . . .”)
- Illinois Secretary of State, Guidance for Remote Notaries and Consumers (“‘Remote notarization’ means the form of an acknowledgment, verification on oath or affirmation, or verification of witness or attestation that is completed remotely by a notary public and: (1) Contains the notary’s signature, seal, title and commission, and expiration date; (2) Contains other required information concerning the date and place of the remote online notarization; (3) Otherwise conforms to the requirements for an acknowledgment, verification on oath or affirmation, or verification of witness or attestation under the laws of this State; and (4) Indicates that the person making the acknowledgment, oath, or affirmation appeared remotely.”)
- Illinois Notary Public Act, 5 ILCS 312/6-103(c) (“At the time of a notarial act, a notary public shall officially sign every notary certificate and affix the rubber stamp seal clearly and legibly using black ink, so that it is capable of photographic reproduction. The illegibility of any of the information required under this Section does not affect the validity of a transaction.”)
- Illinois Notary Public Act, 5 ILCS 312/6-101(a) (“‘Notarial act’ means any act that a notary public of this State is authorized to perform and includes taking an acknowledgment, administering an oath or affirmation, taking a verification upon oath or affirmation, and witnessing or attesting a signature.”)