What We Know (and Don’t Know) About Remote Witnessing and Notarizing and Electronic Wills and Notarization
December 15, 2021
NOTE: This article was originally published on June 21, 2021 and was updated on December 15, 2021 to reflect the Governor’s signing of both acts and the Governor’s most recent Disaster Proclamation.
The new normal for signing estate planning documents in Illinois that began with Governor Pritzker’s March 26, 2020, Covid-19 Executive Order (No. 2020-14) is changing. The Order authorized both the remote witnessing and the remote notarizing of documents, provided certain requirements were met. The Order itself has expired but its provisions are now codified in the law (P.A. 102-0167, 765 ILCS 5/15-20).
The Order made no provision for electronic Wills or electronic notarization, and remote presence differs from electronic documents and signatures. Remote witnessing and notarization occurs when the witness or notary is present via audio-visual communication. An electronic document is created and maintained in electronic form. An electronic signature is in an electronic form that uses established security procedures and is attached to an electronic record.
Sec. 15-20 is in effect until 30 days after the expiration of the Gubernatorial Disaster Proclamation for COVID-19 (or 60 days after the Proclamation is issued, which has been occurring monthly). The Proclamation was last issued December 10, 2021, and Sec. 15-20 will remain operative until at least February 8, 2022. The question to be answered is whether the authorization of remote witnessing and notarizing will continue after the Proclamation expires and Sec. 15-20 sunsets . The answer is yes, but there could be a gap in the authorization for remote notarizing.
The legislature passed and the Governor signed the Electronic Wills and Remote Witnesses Act (the “EWRWA”) into law July 26,2021 (P.A. 102-0167, 765 ILCS 5). The EWRWA took effect upon becoming law. Thus, Illinois law now permits both remote witnessing of Wills and electronic Wills. That being said, it will take time to develop best practices and risk management procedures to put the EWRWA into practice.
The legislature also passed and the Governor signed into law July 23, 2021 amendments to the Illinois Notary Act that provide for remote and electronic notarization of documents (P.A. 102-0106, 5 ILCS 312). Unlike the EWRWA, the amendments to the Notary Act do not become effective until the later of January 1, 2022 or the date the Secretary of State adopts rules to implement the amendments(and some provisions will not be effective until July 1, 2022)). The Secretary of State has adopted the rules. Here again, it will take time to develop best practices and risk management procedures to put the amendments into practice once they are effective.
ISSUE: With the delayed effective date of the amendments to the Notary Act, both with respect to remote notarization and electronic notarization, there may be a gap in time between the sunset Proclamation and Sec. 15-20 and the effective date of the amended Notary Act
TAKE ACTION: Although Wills and Trust Agreements in Illinois do not require notarization, many practitioners include notarization in Wills and Trust Agreements. Illinois Property Powers of Attorney require notarization. If the Proclamation and Sec. 15-20 expire before the amendments to the Notary Act are effective, consider removing notarizations from Wills and Revocable Trusts. Unfortunately, there is no simple fix for Powers of Attorney.
We are monitoring the renewal of the Proclamation and the continuation of Sec. 95-20. There is also the question of how to effectively manage risk in implementing electronic Wills and electronic notarization. This is a significant undertaking which will require appropriate technology, development of practices and procedures, and training. Our work on these issues is underway. Stay tuned.
If you have any questions, please don’t hesitate to reach out to our Fiduciary Advisory Services/Trust & Estates Group attorneys.