Where Do We Stand With Remote Signature, Witnessing And Notarization Of Legal Documents?
The answer is: that’s a good question. Starting in March 2020, Governor Pritzker’s created an Executive Order (No. 2020-14) that authorized remote witnessing and notarization of various documents, including wills, trusts and powers of attorney, provided certain requirements were met. All the parties had to be on video conference and see each other sign. The signatory announced their intention and showed their signature to the witnesses on camera. Documents were to be returned within 24 hours. Many law firms, including MacDonald, Lee & Senechalle, Ltd. require the witnesses to sign an additional attestation that the requirements of the Governor’s order were met. The Governor’s order was subsequently codified in the law (P.L. 101-640, 5 ILCS 175/95-20) late last year, making them effective until July 27, 2021.
In June of 2021, however, the Electronic Wills and Remote Witnesses Act was passed and signed into law by the Governor. The new act modifies Illinois law to permanently permit remote witnesses and signature, with appropriate safeguards closely tracking the Governor’s order. However, the new act goes further and permits electronic wills, for example, wills signed by DocuSign that are maintained in electronic form rather than hard copies. This is a welcome change, but will require some time to actually implement, even though the amendment are immediately effective. The new law didn’t address issues of how the documents are to be maintained, or by whom and left open some issues on how they can be introduced into Probate Court. (The act does have specific provisions governing the proof and testimony required to enter the will into evidence in Probate Court, but it is a more complex process that introducing the original, physical document.)
It is also worth noting that the Electronic Wills and Remote Witnesses Act does not apply to other documents commonly completed at the same time as wills, such as powers of attorney. Those documents are covered by the changes to the Notary Act. Those amendments were passed at the same time, but not immediately signed by Governor Pritzker and won’t take effect until 2022 and not until after the Secretary of State has implemented procedures to implement the new provisions. The primary concern with remote notarization is to guard against fraud and undue influence.
Most people have the assistance of an estate planning attorney, like those at MacDonald, Lee & Senechalle, Ltd. , to create their wills and trusts. We develop a relationship with our clients and understand their personal situation. We meet the clients, and when the wills and trusts are signed, we are confident that the client’s intentions are being met. The same is true for our firm when notarizing powers or attorney or other documents in connection with their estate plan. However, the execution of powers of attorney often happens separately from wills and trusts, and powers of attorney are more frequently completed without the assistance of a skilled attorney.
Notaries are not required to develop a personal relationship with their clients, only to obtain proof of their identity. It is much more difficult to determine in a video conference whether a person is acting freely of their own account and without any outside pressure, than it is when you have an opportunity to establish a direct, face to face relationship. The notary wouldn’t be able to see someone off camera influencing the signer. They would have no way to understand the dynamics of a family relationship. There is an increased risk of fraud.
The Secretary of State is charged with developing appropriate safeguards for implementing the Remote Notarization provisions of the Notary Act and, as of now, that law is not in effect. That creates a gap in implementation of the two laws. As of today, one could remotely sign a will, but not notarize it remotely; and couldn’t remotely sign the remaining documents that typically accompany the will. All these issues will likely be worked out in the coming months, but regardless of the timing for implementation of the new laws, the estate planning attorneys at MacDonald, Lee & Senechalle, Ltd. , look forward to working with you to put your estate plan in order. Call us any time with your questions.