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Law

IL Senate Bill 730

Notary Law Update: IL Senate Bill 730

State: Illinois

Summary:
Senate Bill 730 reinstates the temporary authorization to perform remote notarization during the COVID-19 pandemic and for 30 days after it ends.

Signed:  July 26, 2021

Effective:  July 26, 2021

Chapter: Public Act 102-0167

Affects:
All Illinois Notaries Public, who may perform remote notarizations during the COVID-19 state of emergency and for 30 days after it ends.

Changes:
  1. Gives statutory approval to the Notary and witness guidelines provided in Executive Order 2020-14.
  2. Provides that notwithstanding any provision of law or rule, effective March 26, 2020, and ending 30 days after the expiration of the Governor's emergency declaration regarding COVID-19, a notarial act or an act of witnessing, including when a person must "appear before", act "in the presence of", or any variation, may be performed through means of 2-way audio-video communication technology that allows for direct contemporaneous interaction by sight and sound between the individual signing the document, the witness, and the Notary.
  3. Clarifies that a notarial act satisfies the "appearing before" requirement under Section 6-102 of the Illinois Notary Public Act if the Notary performs a remote notarization via 2-way audio-video communication technology, if the Notary commissioned in Illinois is physically within Illinois while performing the notarial act and the transaction follows any guidance or rules provided by the Secretary of State in existence on the date of notarization.
  4. Requires the 2-way audio-video communication to be recorded and preserved by the signatory or the signatory's designee for a period of at least 3 years.
  5. Requires the signatory to attest to being physically located in Illinois during the 2-way audio-video communication.
  6. Requires the witness to attest to being physically located in Illinois during the 2-way audio-video communication.
  7. Requires the signatory to affirmatively state on the 2-way audio-video communication the document the signatory is signing.
  8. Requires each page of the document being witnessed to be shown to the witness on the 2-way audio-video communication technology in a means clearly legible to the witness.
  9. Requires the act of signing to be captured sufficiently up close on the 2-way audio-video communication for the witness to observe.
  10. Requires the signatory to transmit by overnight mail, fax, electronic, or other means a legible copy of the entire signed document directly to the witness no later than the day after the document is signed.
  11. Requires the witness to sign the transmitted copy of the document as a witness and transmit the signed copy of the document back via overnight mail, fax, electronic, or other means to the signatory within 24 hours of receipt.
  12. Authorizes the witness, if necessary, to sign the original signed document as of the date of the original execution by the signatory if the witness receives the original signed document together with the electronically witnessed copy within 30 days from the date of the remote witnessing.
  13. Clarifies that the prohibition on electronic signatures on certain documents in subsection (c) of Section 120 of the Electronic Commerce Security Act remains in full effect.
  14. Clarifies that notwithstanding any Illinois law or rule to the contrary, absent an express prohibition in a document against signing in counterparts, all legal documents, including, but not limited to, deeds, last wills and testaments, trusts, durable powers of attorney for property, and powers of attorney for health care, may be signed in counterparts by the witnesses and the signatory.
  15. Requires a Notary to be presented with a fax or electronic copy of the document signature pages showing the witness signatures on the same date the document is signed by the signatory if the Notary is being asked to certify to the appearance of the witnesses to a document.
  16. Clarifies that any technology issues that may occur do not impact the validity or effect of any instrument or document signed under this temporary authorization.
  17. Defines "technology issues" to include, but not be limited to, problems with the Internet connection, user error related to the use of technology, the file containing a recorded act becoming corrupted, or other temporary malfunctions involving the technology used in an act of witnessing or a notarial act.
Analysis:

On June 25, 2021, Governor Pritzker signed Senate Bill 2176, enacting the Uniform Electronic Transactions Act (UETA). Enacting the UETA was a great step forward for Illinois, but one unintended consequence was that the bill repealed Illinois’ prior Electronic Commerce Security Act. The issue was that last year a similar bill to Senate Bill 730 was enacted that essentially did what Senate Bill 730 now does, but the new provisions in Senate Bill 2176 were placed in a new section in the Electronic Commerce Security Act. That Act, being repealed by the UETA, meant that the authorization to perform temporary remote notarizations during the COVID-19 pandemic was repealed. To correct this oversight, Senate Bill reinstates those provisions enacted by Public Act 101-0640 of 2020 (Senate Bill 2135) during the state of emergency and for up to 30 days after it ends.

Read the bill text.

State of Emergency
On August 20, 2021, the Governor renewed the Disaster Proclamation for 30 days, until September 19, 2021, extending the temporary authorization to perform remote notarization until October 19, 2021. 

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