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Law

KY Senate Bill 114

Notary Law Update: KY Senate Bill 114

State: Kentucky

Summary:

Senate Bill enacts the Revised Uniform Law on Notarial Acts, notarial acts for remotely located individuals and electronic (online) notarization.

Signed:  March 25, 2019

Effective:  January 01, 2020

Chapter: TBD

Affects:

Creates as yet uncodified new sections to Title 38, Chapter 423 and repeals Sections 423.030, 423.040, 423.050, 423.060, 423.070, 423.080, 423.090 of the Kentucky Revised Statutes.

Changes:

Definitions

  1. Defines “acknowledgment,” “acknowledged before me, or “appears before me,” “communication technology,” “credential,” “dynamic knowledge-based authentication assessment,” “electronic,” “electronic notarization,” “electronic signature,” “foreign state,” “identity proofing,” “in a representative capacity,” “notarial act,” “notarial officer,” “notary public,” “official stamp,” “online notary public,” “outside the United States,” “person,” “record,” “remotely located individual,” “remote presentation,” “sign,” “signature,” “stamping device,” “state,” and “verification on oath or affirmation.
  2. Defines “acknowledged before me” or “appears before me as being in the same physical location as another individual person and close enough to see, hear, communicate with, and exchange credentials with that person; or a different physical location from another person but able to see, hear, and communicate with that person by means of communication technology.
  3. Defines “electronic notarization” as a notarial act performed with respect to an electronic record by means of communication technology that meets the standards in the new law.

Notarial Acts

  1. Authorizes notarial officers to witness or attest signatures and certify that a copy of any document, other than a document that is recorded or in the custody of any federal, state, or local governmental agency, office, or court, is a true copy.
  2. Authorizes Notaries to perform any notarial act authorized by law on a paper or electronic record.
  3. Authorizes online Notaries, upon registration with the Secretary of State, to perform any notarial act as an electronic notarization.
  4. Prohibits a notarial officer from performing a notarial act with respect to a record to which the officer or the officer’s spouse or other member of the officer’s immediate family is a party, or in which any of those individuals has a direct beneficial interest, and further provides that a notarial act performed in violation of this provision is voidable.
  5. Requires notarial officer who takes an acknowledgment, takes a verification on oath or affirmation, or witnesses or attests a signature to determine the identify of an individual presenting for notarization from personal knowledge or satisfactory evidence and that the signature on the record is the signature of the individual.
  6. Provides that a notarial officer has personal knowledge of the identity of an individual if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  7. Provides that a notarial has satisfactory evidence of the identity of an individual if the individual has a non-expired passport, driver’s license, or government-issued identification card; another current form of government identification issued to an individual, which contains the signature and a photograph of the individual, and is satisfactory to the notarial officer; or if the individual has a credible witness whom the Notary can identify on the basis of a current, passport, driver’s license, or government-issued identification card.
  8. Authorizes a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the identity of an individual.
  9. Allows a notarial officer to certify that a tangible copy of an electronic record containing a notarial certificate the officer has executed is an accurate copy of the electronic record and clarifies that the tangible copy certified as a copy by the officer may be accepted as satisfying any requirement that a record accepted for recording be an original.
  10. Requires the certificate for a copy certification of a tangible copy of an electronic record to: (a) be signed and dated by the Notary; (b) identify the jurisdiction in which the certification is performed; (c) contain the title of the Notary; and (d) indicate the number and date of expiration, if any, of the Notary’s commission; and further allows the Notary to use an official stamp.
  11. Provides a statutory certificate form for a copy certification of a tangible copy of an electronic record.
  12. Requires a Notary who certifies a tangible copy of an electronic record to: (a) personally print or supervise the printing of the electronic document onto paper; (b) not make any changes or modifications to the electronic document other than the certification described in subsection (3) of this section; and (c) confirm that the electronic document has been rendered tamper-evident.
  13. Clarifies that the providing of a certified tangible copy of an electronic record does not apply to a plat, map, or survey of real property if under another law of Kentucky, or under a rule, regulation, or ordinance applicable to a clerk if: (a) there are requirements of format or medium for the execution, creation, or recording of the plat, map, or survey beyond the requirements applicable to a deed to real property; or (b) the plat, map, or survey must be recorded in a different location than a deed to real property.
  14. Authorizes a notarial officer to refuse to perform a notarial act if the Notary is not satisfied that the individual signing the record is competent or has the capacity to sign the record or the individual’s signature is knowingly and voluntarily made, and further authorizes the officer to refuse to perform a notarial act unless refusal is prohibited by law other than Sections 1 to 32 of the new law.
  15. Allows an individual physically unable to sign a record to direct another individual other than the notarial officer to sign the individual’s name on the record by proxy in the presence of 2 witnesses unaffected by the record (one of whom signs the record) and requires both witnesses to sign the record as witnesses and the officer to add the following or similar statement on the record: “Signature affixed by (name of proxy signer) at the direction of (name of individual) and in the presence of (names and addresses of the two witnesses).”

Notarial Certificate and Official Stamp

  1. Requires a notarial act to be evidenced by a certificate that must: (a) be executed contemporaneously with the performance of the notarial act; (b) be signed and dated by the notarial officer and, if the officer is a Notary, be signed in the same manner as on file with the Secretary of State; (c) identify the jurisdiction in which the notarial act is performed; (d) contain the title of office and name of the officer; and (e) if the officer is a Notary, indicate the commission number and date of expiration, if there is an expiration date, of the officer’s commission.
  2. Clarifies that by executing a certificate of a notarial act, a notarial officer certifies that the officer has complied with the requirements and made the determinations specified in the new laws.
  3. Prohibits a notarial officer from affixing the officer’s signature to, or logically associate it with, a certificate until the notarial act has been performed.
  4. Requires a notarial certificate for a tangible record to be part of, or securely attached to, the record, and if the certificate is for an electronic record, to be affixed to, or logically associated with, the electronic record and comply with any standards established by the Secretary of State.
  5. Provides that a certificate of notarial act is sufficient if it meets the requirements of the new law and it: (a) is in a short form promulgated by the Secretary of State; (b) is in a form otherwise permitted by the laws of Kentucky; (c) is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or (d) sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in the new laws or other law of Kentucky other than the new laws.
  6. Requires the Secretary of State to promulgate short form certificates for notarial acts.
  7. Allows, but does not require, an official stamp to be attached to or logically associated with the certificate.
  8. Requires an official stamp, if selected for use by a Notary, to include the Notary’s name, title, jurisdiction, commission number, and expiration date; and be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated.
  9. Requires a Notary to be responsible for the security of the Notary’s stamping device.
  10. Provides that on resignation from, or the revocation or expiration of, the Notary’s commission, or on the expiration of the date set forth in the stamping device, if any, the Notary shall disable the stamping device by destroying, defacing, damaging, erasing, or securing it against use.
  11. Provides that on the death or adjudication of incompetency of a Notary, the Notary’s personal representative or guardian or any other person knowingly in possession of the stamping device shall render it unusable by destroying, defacing, damaging, erasing, or securing it against use.
  12. Requires a Notary or Notary’s personal representative to notify promptly the Secretary of State on discovering that the Notary’s stamping devoice is lost or stolen.

Electronic (Online) Notarization

  1. Clarifies that an online Notary must be commissioned as a Notary and may perform notarial acts on paper and electronic records in addition to performing “electronic notarizations (online notarizations).
  2. Authorizes an online Notary to perform an electronic notarization for an individual (a) located in Kentucky, (b) elsewhere within the geographic boundaries of the United States, or (c) outside of the United States.
  3. Requires the individual located outside of the United States for whom an online Notary performs an electronic notarial act to confirm to the online Notary that the record is to be filed with or relates to a matter before a court, governmental entity, public official, or other entity located in the territorial jurisdiction of the United States, or relates to property located in the United States, or relates to a transaction substantially connected to the United States, and authorizes the online Notary to refuse to perform the electronic notarial act if the online Notary is not satisfied that this is true.
  4. Authorizes an online Notary to perform an electronic notarization for an individual located outside of the United States if the online Notary has no actual knowledge that the act of making the statement or signing the record is not prohibited by the jurisdiction in which the individual is located and authorizes the online Notary to refuse to perform the electronic notarial act if the online Notary is not satisfied that this is true.
  5. Provides that an online Notary has satisfactory evidence of the identity of an individual if (a) the Notary personally knows the individual; (b) all of the following are met: remote presentation by the individual of a government-issued identification credential that contains the signature and photograph of the individual; credential analysis of the identification credential remotely presented to the Notary; and identity proofing of the individual, which may include a dynamic knowledge-based authentication assessment; or (c) a valid public key certificate that complies with the administrative regulations promulgated by the Secretary of State.
  6. Requires a certificate of an electronic notarization involving a statement made in or a signature executed on an electronic record by means of communication technology to indicate that the individual making the statement or signing the record appeared before the online Notary by means of communication technology.
  7. Clarifies that the validity of an electronic notarization is determined by the laws of Kentucky, not where the individual for whom the electronic notarization is located.
  8. Requires an online Notary to take reasonable steps to ensure that any registered device or credential used to create an electronic signature is current and has not been revoked or terminated by the device’s or credential’s issuing or registering authority.
  9. Requires an online Notary to take reasonable steps to ensure that the audio-video communication used in an electronic notarization is secure from unauthorized interception or use.

Electronic Journal and Recording of Electronic (Online) Notarizations

  1. Requires an online Notary to maintain a journal in which the online Notary chronicles all electronic notarizations that the online Notary performs.
  2. Requires an online Notary to retain the journal for 10 years after the performance of the last electronic notarization chronicled in the journal.
  3. Requires an online Notary’s journal to be in a permanent, tamper-evident electronic format complying with regulations promulgated by the Secretary of State.
  4. Allows an online Notary to keep more than 1 journal of electronic notarizations.
  5. Requires an entry in the journal to include: (a) the date and time of the notarial act; (b) a brief description of the record, if any, and type of notarial; (c) the full name and address of each individual for whom the notarial act is performed; (d) if identity of the individual is based on personal knowledge, a statement to that effect; (e) if identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification and the means used as well as the date of issuance and expiration of any identification credential presented; and (f) the fee, if any, charged by the online Notary.
  6. Provides that if a notarial act involves the use of communication technology, the Notary shall retain the audio-visual recording of the performance of the notarial act in compliance with both subsection (7) of Section 12 of the new laws and the administrative regulations promulgated by the Secretary of State.
  7. Requires a Notary to promptly notify the Secretary of State on discovering that the journal is lost or stolen.
  8. Provides that on resignation from, or the revocation or suspension of, a Notary’s commission, the Notary shall retain the journal in for 10 years after the performance of the last electronic notarization chronicled in the journal.
  9. Provides that on the death or adjudication of incompetency of a current or former Notary, the Notary’s personal representative or guardian or any other person knowingly in possession of the journal shall transmit it to the Secretary of State or otherwise as directed in administrative regulations promulgated by the Secretary of State.
  10. Allows a Notary to designate a custodian to maintain the journal for 10 years after the performance of the last electronic notarization chronicled in the journal or retain an audio or visual recording of a notarial act required in compliance with both subsection (7) of Section 12 of the new laws and the administrative regulations promulgated by the Secretary of State.
  11. Requires an online Notary to include in addition to the journal entries required by law for the online notarization, an indication of whether the individual making a statement or signing a record appeared physically before the online Notary or by means of communication technology.
  12. Requires an online Notary to create a recording of the online electronic notarization session and retain the recording for at least 10 years after the date of the transaction or proceeding, or for the period of retention of a Notary’s journal, whichever is longer.
  13. Authorizes the Secretary of State to promulgate administrative regulations regarding the performance of electronic notarizations and specifies the areas for which regulations may be promulgated.
  14. Requires an online Notary to take reasonable steps to ensure that a backup exists for all information pertaining to an electronic notarization required to be kept by administrative regulations promulgated by the Secretary of State and the backup is secure from unauthorized use.

Notarial Acts for Remotely Located Individuals

  1. Authorizes a Notary Public who first notifies the Secretary of State, to perform notarial acts for remotely located individuals and provides rules for notifying the Secretary.
  2. Provides that a remotely located individual may be identified by: (a) personal knowledge; (b) a credible witness; or (c) two forms of identity proofing.
  3. Requires a Notary who performs a notarial act for a remotely located individual to reasonably identify a record before the Notary as the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature.
  4. Requires, for notarial acts for remotely located individuals outside the United States, the record to be filed with or relate to a matter before a court, governmental entity, public official, or other entity located subject to the jurisdiction of the United States, or involve property located in the territorial jurisdiction of the United States, or relate to a transaction substantially connected to the United States.
  5. Requires, for notarial acts for remotely located individuals outside the United States, that the notarial act is not prohibited by the foreign state in which the remotely located individual is located.
  6. Requires the certificate for the notarial act for a remotely located individual to indicate that the act was performed using communication technology.
  7. Clarifies that a short form certificate promulgated by the Secretary of State by regulation is sufficient for a notarial act for a remotely located individual if it complies with administrative regulations promulgated by the Secretary or is in the form promulgated by the Secretary and contains a statement substantially as follows: “This notarial act involved the use of communication technology.”
  8. Requires a Notary who performs notarial acts for remotely located individuals to keep a recording of the notarial act.
  9. Requires a Notary, a guardian, a conservator, or agent of a Notary, or a personal representative of a deceased Notary to retain the audio-visual recording or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording and specifies that unless a different period is required by administrative regulations, the recording must be retained for no less than 10 years after the recording is made.
  10. Provides that by allowing its communication technology or identity proofing technology to facilitate a notarial act for a remotely located individual or by providing storage of the audio-visual recording, the provider of the technology appoints the Secretary of State as the provider’s agent for service of process in any civil action in this state related to the notarial act.

Notary Commission

  1. Provides that an applicant for a Notary commission must: (a) be at least 18 years of age; (b) be a citizen or permanent legal resident of the U.S.; (c) be a resident of or have a place of employment or practice in the county within Kentucky where the application is made; (d) be able to read and write English; (e) not be disqualified to receive a commission under Section 20 of the new law; (f) submit to the Secretary of State any application forms, information, disclosures, and verifications as are required by administrative regulations promulgated by the Secretary of State; (g) submit to the Secretary of State proof of having obtained a surety bond; (h) take an oath of office; and (i) submit a fee payment of $10, as specified in Section 27 of the new law, made payable to the State Treasurer.
  2. Requires the Notary’s surety or issuing entity to give 30 days’ notice to the Secretary of State before canceling the assurance (bond) or of the assurance’s (bond’s) expiration if such expiration is prior to the date of expiration of the notary’s commission.
  3. Provides that a Notary may perform notarial acts for 4 years and in any county of Kentucky only during the period that the Notary’s commission and a valid assurance is on file with the county clerk.
  4. Provides that if, at any time during the period of commission, or period of registration, a Notary changes his or her mail or email address, county of residence, name, signature, electronic signature, or the technology or device used to perform notarial acts or to maintain his or her journal or to render electronic documents tamper-evident, the Notary must, within 10 days after making the change, submit to the Secretary of State the changed information upon the form and containing all information required by the Secretary, along with a fee payment of $10, payable to the State Treasurer.
  5. Provides that prior to the expiration of his or her commission, a Notary may apply to the Secretary of State to renew his or her commission by satisfying the same qualifications and requirements as for the current commission.
  6. Provides that if approved for a renewal commission, the Secretary of State shall issue a renewed commission to the Notary for an additional (4) years, using the same commission number as the Notary’s original commission and indicating the new commission expiration date.
  7. Provides that a Notary has no authority to perform notarial acts during any period between the expiration of his or her current commission and the effective date of any renewal commission.
  8. Clarifies that a Notary commission does not provide the Notary with any immunity or benefit conferred by the Kentucky law on public officials or employees.

Electronic Records and Electronic (Online) Notarization Registration

  1. Requires a Notary to register with the Secretary of State if the Notary intends to perform notarial acts: (a) with respect to electronic records where the individual will appear in the Notary’s physical presence; or (b) as an online Notary to perform electronic notarizations by means of communication technology.
  2. Provides requirements a Notary must meet to register to perform notarial acts with respect to electronic records in the physical presence of the Notary or as an online Notary.
  3. Requires a Notary to register with the Secretary of State before performing electronic notarizations as an online Notary.
  4. Authorizes a Notary to select 1 or more tamper-evident technologies to perform notarial acts in the physical presence of the individual signer with respect to electronic records, or to perform electronic notarizations, and prohibits a person from requiring a Notary to perform any notarial act with a technology that the Notary has not selected.
  5. Provides that if the Secretary of State has established standards respecting technology to perform notarial acts in the physical presence of the individual signer with respect to electronic records, or to perform electronic notarizations, the technology chosen by the Notary must conform to those standards.
  6. Provides that 30 days after compliance with all registration requirements and payment of the required registration fee, a Notary will be registered to perform notarial acts in the physical presence of an individual signer with respect to electronic records, or to perform electronic notarizations as an online Notary, or as both.
  7. Authorizes the Secretary of State to at any time cancel the registration of a Notary to perform notarial acts with respect to electronic records, or as an online Notary to perform electronic notarizations, if the Notary fails to comply with any of the requirements of the new law or based upon any of the grounds for revocation or suspension of a Notary’s commission.
  8. Provides that registration of a Notary is suspended by operation of law when the Notary is no longer commissioned as a Notary, and further provides that if the commission of a Notary has expired or been revoked or suspended, the Secretary of State shall immediately notify the Notary in writing that his or her registration will be suspended by operation of law until he or she is appointed as a Notary.

Grounds for Action Against a Notary Commission; Prohibited Acts

  1. Authorizes the Secretary of State to deny, refuse to renew, revoke, suspend, or impose a condition on a commission as Notary for any act or omission that demonstrates the individual lacks the honesty, integrity, competence, or reliability to act as a Notary, including: (a) failure to comply with the new laws; (b) a fraudulent, dishonest, or deceitful misstatement or omission in the application for a commission as a Notary; (c) a conviction of the applicant or Notary of any felony or a crime involving fraud, dishonesty, or deceit; (d) a finding against, or admission of liability by, the applicant or Notary in any legal proceeding or disciplinary action based on the applicant’s or Notary’s fraud, dishonesty, or deceit; (e) failure by the notary to discharge any duty required of a Notary, whether by any of the new statutes, administrative regulations promulgated by the Secretary of State, or any federal or state law; (f) use of false or misleading advertising or representation by the Notary representing that the Notary has a duty, right, or privilege that the Notary does not have; (g) violation by the Notary of an administrative regulation of the Secretary of State regarding a Notary; (h) denial, refusal to renew, revocation, or suspension of a Notary commission in another state; or (i) failure of the notary to maintain an assurance (bond).
  2. Clarifies the authority of the Secretary of State to deny, refuse to renew, suspend, revoke, or impose conditions on a commission as a Notary does not prevent a person from seeking and obtaining other criminal or civil remedies provided by law.
  3. Clarifies that a commission as a Notary does not authorize an individual to engage in the practice of law.
  4. Prohibits a Notary from engaging in false or deceptive advertising.
  5. Prohibits a Notary, other than an attorney licensed to practice law in this state, from advertising or representing that the Notary may assist persons in drafting legal records, give legal advice, or otherwise engage in the unauthorized practice of law as defined by rule of the Supreme Court.
  6. Provides that except as otherwise allowed by law, a Notary shall not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the Notary.

Recognition and Recording of Notarial Acts

  1. Clarifies that Notaries Public and county clerks may perform notarial acts in Kentucky, provides that the signature and title of the Notary or county clerk are prima facie evidence that the signature is genuine and that the individual holds the designated title, and that the signature and title of a Notary or county clerk conclusively establishes their authority to perform the notarial act.
  2. Provides for the recognition of notarial acts by notarial officers of other states.
  3. Provides for the recognition of notarial acts by notarial officers of federally recognized Indian tribes.
  4. Provides for the recognition of notarial acts performed by notarial officers under the authority of federal law.
  5. Provides for the recognition of notarial acts performed by notarial officers of a foreign state, and further provides that an apostille in the form prescribed by the Hague Apostille Convention or, for foreign states not party to the Hague Apostille Convention, a consular authentication issued by an individual designated by the U.S. Department of State as a notarizing officer for performing notarial acts overseas and attached to the record to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
  6. Clarifies that a writing or record that appears on its face to have been properly notarized in accordance with the new statutes shall be presumed to have been notarized properly and may be recorded by the clerk.
  7. Clarifies that a writing or record notarized outside this state by a Notary or other person referenced in Section 10 or 11 of the new laws that appears on its face to be properly notarized shall be presumed to have been notarized properly in accordance with the laws and regulations of the jurisdiction in which the document was notarized.
  8. Provides that a county clerk shall be immune from suit arising from any acts or omissions relating to recording records that have been notarized by electronic means as set forth in the new statutes unless the clerk was grossly negligent or engaged in willful misconduct.

Other Provisions

  1. Requires the Secretary of State to maintain a database of Notaries Public through which a person may verify the authority of a Notary to perform notarial acts and which indicates whether a Notary has registered with the Secretary of State in order to perform notarial acts on electronic records or to act as an online Notary.
  2. Clarifies that except as otherwise provided in subsection (4) of Section 3 of the new statutes, the failure of a notarial officer to perform a duty or meet a requirement specified the new laws does not invalidate a notarial act performed by the notarial officer.
  3. Clarifies that the validity of a notarial act does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on other laws of this state.
  4. Clarifies that the provisions clarifying the validity of notarial acts do not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.
  5. Authorizes the Secretary of State to promulgate regulations to implement the new statutes and provides guidance for the regulations.
  6. Clarifies that a Notary with a current commission in effect on the effective date of the new statutes shall continue until its expiration date.
  7. Clarifies that a Notary who applies to renew a Notary commission on or after the effective date of the new statutes is subject to and must comply with the new statutes.
  8. Clarifies that a Notary, in performing notarial acts after the effective date of the new statutes, must comply with the new statutes.
  9. Clarifies that the new statutes do not affect the validity or effect of a notarial act performed before the effective date of the new statutes.
  10. Clarifies that in the event of a conflict between the provisions of the new chapter of Notary laws and any other law in Kentucky, the provisions of the new chapter shall control.
  11. Amends the Uniform Electronic Transactions Act to allow an electronic record and signature to apply to a law governing the conveyance of any interest in real property.
  12. Repeals Sections 423.030, 423.040, 423.050, 423.060, 423.070, 423.080, 423.090.
Analysis:

Over the past year we've seen states with dated and even archaic Notary statutes finally revamp their laws with progressive and workable revisions. Last year it was Rhode Island and Ohio; this year it is Kentucky. Senate Bill 114 is a massive rewriting of Chapter 423. Under the new law, there are at least four types of notarial acts: (1) Paper notarizations; (2) Notarizations involving electronic records in which the signer appears physically before the Notary; (3) Notarial acts for a remotely located individual who is remote to the Notary and appears before the Notary using communication technology smf performed by a Notary Public on either a paper or electronic record; and (4) "Electronic notarization," specifically defined under the new law as a remote or online notarization using communication technology performed by an Online Notary. Regarding the performance of paper-based notarial acts, notarial acts involving electronic records and notarial acts for remotely located individuals, the act enacts in great substance the Revised Uniform Law on Notarial Acts (RULONA). Senate Bill 114 takes effect on January 1, 2020, leaving 9 months for any regulations to be adopted to implement the new law. This is a relatively short time frame for a new law of this nature and substance.

Read the bill text.

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