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Law

MT House Bill 370

Notary Law Update: MT House Bill 370

State: Montana

Summary:

House Bill revises Montana's Notary statutes at many points, authorizes Notaries to perform new notarial acts and updates Montana's provisions allowing Notaries to perform remote notarizations.

Signed:  April 03, 2019

Effective:  October 01, 2019

Chapter: 123

Affects:

Adds new as yet uncodified sections to and amends Sections 1-5-602, 1-5-603, 1-5-609, 1-5-610, 1-5-615, 1-5-616, 1-5-617, 1-5-618, 1-5-619, 1-5-620, 1-5-621, 1-5-622, 1-5-623, 1-5-624, 1-5-625, 1-5-626, 1-5-627, 1-5-628, and 40-1-301 of the Montana Code Annotated.

Changes:

Definitions

  1. Defines “appearing before,” “certification of fact,” “communication technology,” “credential analysis,” dynamic knowledge-based authentication assessment,” “electronic notarization system,” “identification credential,” “oath or affirmation,” “official record,” “outside the United States,” “principal,” “public key certificate,” “public key infrastructure technology,” “remote notarization,” “remote online notarization,” “remote presentation,” “security procedure,” “signature witnessing,” “sole control,” and “tamper-evident.”
  2. Defines “remote notarization” as a notarial act performed by means of communication technology on a tangible record.
  3. Defines “remote online notarization” as a notarial act or notarization performed by means of communication technology and an electronic notarization system on an electronic record.
  4. Makes technical changes to the definitions of “acknowledgment,” “stamping device,” “notarial act” and “Notary Public.”
  5. Amends the definition of “verification on oath or affirmation” to clarify that an individual taking the oath or affirmation and signing the record did so knowingly and willingly before the notarial officer for the purposes intended.

Notary Commission

  1. Allows the spouse or legal dependent of military personnel assigned to active duty in Montana to apply for a Notary commission.
  2. Allows an individual who maintains a place of business in Montana that is registered pursuant to MCA Title 35 and meets any applicable business licensing requirements of the local government where the business is located to apply for a Notary commission.
  3. Allows an individual who is regularly employed at an office, business, or facility located within Montana by an employer registered and licensed to do business in Montana to apply for a Notary commission.
  4. Allows an individual who holds a current professional license to practice the profession in Montana issued by an appropriate Montana authority to apply for a Notary commission.
  5. Requires an applicant for a new or renewed Notary commission to meet the education requirements provided in MCA 1-5-620 and pass an examination, provide certification to the Secretary of State that he or she has completed the education requirement and passed the examination, and submit the certification along with the application, application fee and bond within 30 days before or after the effective date of the surety bond or the expiration of the previous commission.
  6. Raises the amount of the Notary bond required for a Notary commission from $10,000 to $25,000.
  7. Requires on and after July 1, 2020, in addition to passing the examination, the applicant for a new commission to have completed within the previous 12 months at least 4 hours of Notary education approved by the Secretary of State or by the commission of continuing legal education.
  8. Requires on and after July 1, 2020, in addition to passing the examination, the applicant for a renewed commission to have completed and (b) to renew a commission, an applicant must have completed: (a) within the previous 12 months, at least 4 hours of Notary continuing education approved by the Secretary of State or by the commission of continuing legal education; or (b) in each of the previous 3 years, at least 2 hours of Notary continuing education approved by the Secretary or by the commission of continuing legal education.
  9. Requires the Secretary of State to collect fees commensurate with the cost incurred by the Secretary’s office for providing Notary education and examinations.
  10. Authorizes the Secretary of State to require a Notary who has violated a provision of Montana’s Notary statutes or a rule of the Secretary of implementing a provision of Montana’s Notary statutes to complete a Notary education class approved by the Secretary.
  11. Requires a Notary who is convicted of or pleads guilty or no contest to a felony crime involving fraud, dishonesty, or deceit to notify the Secretary of State within 30 days of the conviction or plea.

Notarial Acts

  1. Authorizes a notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record.
  2. Authorizes a Notary to perform marriage ceremonies.
  3. Authorizes a notarial officer to certify a fact and provides that a notarial officer who certifies a fact may review a public or private record to ascertain or verify that specific data is contained or shown on the record or memorialized in a publication that the Notary believes to be reliable.
  4. Authorizes a notarial officer to certify that an individual is alive and provides that a notarial officer who certifies that an individual is alive must verify from personal knowledge or satisfactory evidence that the individual appearing before the notarial officer is alive at the time of certification.
  5. Authorizes a notarial officer to certify a photograph and provides that a notarial officer who certifies a photograph must verify from personal knowledge or satisfactory evidence that the photograph is an accurate representation of the individual or item represented.
  6. Clarifies that a notarial officer taking an acknowledgment must determine that the individual making the acknowledgment did so knowingly and willingly for the purposes intended.
  7. Clarifies that a notarial officer witnessing a signature must determine the individual signing a record did so knowingly and willingly for the purposes intended.
  8. Provides that a notarial officer taking an acknowledgment or witnessing a signature of an individual who signs the record in a representative capacity must determine (a) from personal knowledge or satisfactory evidence of the identity of the individual that the individual appearing before the notarial officer has the identity claimed; and (b) from the record, personal knowledge, or presentment of an official record that the individual holds the title or capacity claimed and has knowingly and willingly signed the record in that capacity for the purposes intended.
  9. Authorizes a notarial officer to refuse to take an acknowledgment or witness a signature of an individual who signs the record in a representative capacity if the officer is not satisfied that the official record or the presented record evidences the individual’s capacity to act as the principal’s representative on the record presented for notarization.
  10. Requires a notarial officer who administers an oath or affirmation to determine from personal knowledge or satisfactory evidence of the identity of the individual that the person appearing before the notarial officer and taking the oath or affirmation has the identity claimed and is knowingly and willingly making the statement with the intent to be bound by the statement.
  11. Clarifies that a credible witness who identifies a principal no longer must do so by a verification on oath or affirmation but simply by an oath or affirmation when physically present before a notarial officer.
  12. Authorizes a notarial officer to use as satisfactory evidence of identity two or more different types of technologies, processes, or services approved by the Secretary of State, such as a dynamic knowledge-based authentication assessment, a valid public key certificate, identity proofing, remote presentation and credential analysis, or any other means prescribed in rule by the Secretary, to identify a principal physically appearing before the notarial officer for a notarial act.
  13. Requires a notarial officer to refuse to perform a notarial act if the notarial officer is not satisfied that (a) the individual executing the record is competent or has the capacity to execute the record; or (b) the individual executing the record is signing knowingly or voluntarily. (Note: in prior law, the Notary was authorized to refuse to perform a notarial act for these reasons.)
  14. Requires a Notary to refuse a request that would require the Notary to (a) use an electronic notarization system or a communication technology that the Notary does not know how to operate; or (b) use an electronic notarization system or communication technology that does not meet the requirements of Montana’s Notary statutes or standards adopted by rule.
  15. Prohibits a Notary from affixing the Notary’s official signature or stamp to any record that does not contain the Notary’s completed notarial certificate, unless otherwise directed by statute or rule;

Notarization of Electronic Records

  1. Allows all notarial officers, and not just Notaries Public, to perform notarial acts on electronic records.
  2. Requires an electronic notarization system provider to take reasonable steps to ensure that a Notary opting to use a provider’s system has the knowledge to use it to perform electronic notarial acts in compliance with Montana law.
  3. Requires Notaries using an electronic notarization system or communication technology to notify the Secretary of State prior to performing the first notarial act with the system or technology.
  4. Requires Notaries using an electronic notarization system or communication technology complete a course of instruction approved by the Secretary of State and pass an examination based on the course.
  5. Requires the course for performing notarial acts with an electronic notarization system or communication technology to cover notarial rules, procedures, and ethical obligations pertaining to remote or electronic notarization under Montana’s Notary laws or pursuant to any other Montana law or official guideline.
  6. Allows the course for performing notarial acts with an electronic notarization system or communication technology to be completed in conjunction with any course required by the Secretary of State for a Notary Public commission.
  7. Requires Notaries using an electronic notarization system or communication technology to submit proof to the Secretary of State that they have successfully completed the course and examination.
  8. Repeals the prior remote notarization statutes.

Remote Notarizations and Remote Online Notarizations

  1. Clarifies that an individual may appear before the notarial officer using communication technology for a notarial act that relates to a statement made in or a signature executed on a record.
  2. Provides that a notarial officer may perform a remote notarization or remote online notarization for a principal who is located (a) in Montana, (b) outside Montana but within the United States, or (c) outside the United States.
  3. Provides that in order to perform a remote notarization or remote online notarization for a principal who is located outside of the United States, the act must not be known by the notarial officer to be prohibited in the jurisdiction in which the principal is physically located at the time of the act, and the record must be part of or pertain to: (a) a matter that is to be filed with or is before a public official or court, governmental entity, or other entity located in the territorial jurisdiction of the United States; (b) property located in the territorial jurisdiction of the United States; or (c) a transaction substantially connected with the United States.
  4. Provides that in order to perform a remote notarization or remote online notarization, the notarial officer must: (a) be physically located in Montana at the time the notarial act is performed; (b) identify the principal through personal knowledge or satisfactory evidence; (c) execute the notarial act in a single recorded session; (d) be satisfied that any record that is signed, acknowledged, or otherwise presented for notarization by the principal is the same record remotely notarized by the notarial officer; (e) be satisfied that the quality of the communication technology is sufficient to make the determinations required for the notarial act under Montana’s Notary laws and any other applicable Montana law; (f) identify the venue as described in Section 19 of the new law; and (g) be capable of meeting the requirements of MCA 1-5-618.
  5. Requires a notarial officer who performs a remote notarization or remote online notarization to take reasonable steps to ensure that (a) the notarial officer, the principal, and any required witness are accessing the communication technology or the electronic notarization system, or both, through an authentication procedure that is reasonably secure from unauthorized access; (b) the principal and any required witness are viewing the same record; and (c) all signatures, changes, and attachments to the record are made in real-time.
  6. Clarifies that a notarial act performed by means of communication technology is considered to have been performed in Montana and is governed by Montana law regardless of the physical location of the principal at the time of the notarization.
  7. Clarifies that a credible witness who identifies a principal for a remote notarization or remote online notarization may appear before a notarial officer by means of communication technology.
  8. Provides that a notarial officer has satisfactory evidence of the identity of an individual if the officer can identify the individual or witness who appears through the use of communication technology by two or more different types of technologies, processes, or services approved by the Secretary of State, such as a dynamic knowledge-based authentication assessment, a valid public key certificate, identity proofing, remote presentation and credential analysis, or any other means prescribed in rule by the Secretary.
  9. Requires a notarial officer who uses communication technology to perform a notarial act to make an audio-visual recording of the entire communication.
  10. Provides that except as provided in MCA 1-5-618(1)(d)(ii), a notarial officer must keep sole possession of an audio-visual recording.
  11. Requires a notarial officer to allow a person to inspect or obtain a copy of an audio-visual recording if: (a) the requester specifies the month, year, type of record, and name of the principal for the notarial act, in a signed tangible or electronic request; (b) the notarial officer does not surrender possession or control of the original recording; (c) the requester is shown or given a copy of only the recording specified; and (d) the notarial officer is satisfied that the requester has reasonable purpose directly relating to the notarization.
  12. Provides that the recording of a notarial act performed using communication technology may be examined and copied without restriction by a law enforcement officer in the course of an official investigation, subpoenaed by court order, or surrendered at the direction of the Secretary of State.
  13. Provides that except as provided in MCA 1-5-618(1)(d)(ii), a notarial officer must retain an audio-visual recording for 10 years from the date of the recording.
  14. Authorizes a current or former notarial officer to transmit the audio-visual recording to a repository approved by the Secretary of State.

Notary Fees

  1. Authorizes a Notary to charge not more than $10 for performing a certification of fact.
  2. Authorizes a Notary to charge not more than $10 for performing another notarial act authorized by law, unless charging a fee for the act is expressly prohibited by that law.
  3. Authorizes a Notary to charge a fee to recover the actual cost of providing a copy of a journal entry or audio-visual recording of a notarial act performed using communication technology.

Notary Journal

  1. Requires a journal entry for a notarial act to include the date of the record notarized, if indicated.
  2. Provides that if a notarial act is performed using communication technology, the journal record must reference the storage location of the audio-video recording in lieu of the signature of the principal.
  3. Prohibits a Notary from recording in the journal a Social Security number, passport number, driver’s license number, birth date, or any other information prohibited by the Secretary of State.
  4. Authorizes a Notary to include in the journal other information descriptive of the record, including the number of pages in a document, whether the document was written in a foreign language, or other information pertaining to the record that is not otherwise prohibited by law or rule.
  5. Provides that except as provided in MCA 1-5-618(9)(b), a Notary must keep sole control of the journal and all other notarial records and surrender or destroy them only as authorized by law or rule, by court order, or at the direction of the Secretary of State.
  6. Prohibits a Notary to not allow the Notary’s journal to be used by any other Notary and to not surrender the journal to an employer upon termination of employment without the approval of the Secretary of State.
  7. Authorizes an employer to retain a copy of the journal of an employee who is a Notary after the Notary’s employment ceases if the journal contains records of notarial acts performed within the scope of the Notary’s employment.
  8. Provides that any person may inspect or obtain a copy of an entry in a Notary Public’s journal if: (a) the person specifies in a signed tangible or electronic request the month, year, type of record, and name of the principal; (b) the Notary does not surrender possession or control of the journal; (c) the person is shown or given a copy of only the entry specified; and (d) the Notary is satisfied that a person requesting the inspection or copy does not have a criminal or other illegal purpose for inspecting the entry or obtaining the copy.
  9. Provides that a journal may be examined and copied without restriction: (a) by a law enforcement officer in the course of an official investigation; (b) if subpoenaed by court order; or (c) at the direction of the Secretary of State.
  10. Provides that except as provided in MCA 1-5-618(9)(b), a Notary Public must retain a journal for 10 years after the performance of the last notarial act chronicled in the journal.
  11. Requires 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 Notary’s audio-visual recordings to transmit all recordings to a repository approved by the Secretary of State.
  12. Provides that upon revocation of a Notary’s commission, the Notary must transmit the Notary’s journal and audio-visual recordings to a repository approved by the Secretary of State.
  13. Provides that if Montana supreme court rules governing conduct by members of the bar, including the rules of professional conduct and ethics opinions, prohibit compliance by an attorney licensed by the supreme court with any provision of MCA 1-5-618 related to the journal, that provision does not apply to the attorney.
  14. Requires a Notary who notarizes the signature of an individual who is unable to physically sign a record to record in the Notary’s journal the name and address of the individual who signs the record as well as the name and address of the principal unable to sign.

Notarial Certificate, Official Stamp and Signature

  1. Requires a notarial certificate to: (a) specify the notarial act performed; (b) no longer identify the jurisdiction in which the notarial act is performed but identify the venue for the notarial act as it is defined in Section 19 of the new law; (c) identify the name of the principal, the type of record and issuing entity that is copied, or the information the notarial officer has certified under MCA 1-5-603(11); (d) if the notarial officer is a Notary, a clerk of court, a deputy clerk of court, a clerk and recorder, a deputy clerk and recorder, the state registrar, or the authorized agent of the state registrar, be signed in the same manner as on file with the Secretary of State; and (e) contain the impression or electronic image of the Notary Public’s official stamp or the notarial officer’s seal.
  2. No longer requires a certificate of notarial act to include a Notary Public’s commission expiration date.
  3. Clarifies that a certificate of notarial act on a tangible record must be part of or securely affixed to the record.
  4. Clarifies that a certificate of notarial act on an electronic record must be attached to or logically associated with the record.
  5. Requires a certificate of notarial act for a remote notarization or remote online notarization must include all information required for any notarial certificate, indicate the notarial act was performed using communication technology, and contain any other information required by rule.
  6. Allows a Notary to subsequently correct information included or omitted from a notarial certificate executed by the Notary is the change or correction can be evidenced by the information contained in the Notary’s journal record of the transaction.
  7. Prohibits a Notary from subsequently correcting an official stamp on a paper or electronic record but allows the Notary to affix a subsequent impression of a missing, illegible or incorrect official stamp.
  8. Provides that any changes or corrections to a notarial certificate must be dated and initialed by the Notary and a corresponding notation of the changes must be made in the journal record.
  9. Provides that only the Notary who performed the notarization may make or authorize a change or correction to a previously completed certificate, and further provides if a Notary authorizes a third party to change or correct the information included or omitted on a previously completed certificate, the authorization must be granted in writing and a copy of the message authorizing the change and a copy of the changed certificate must be attached to the Notary’s journal record for that transaction.
  10. Adds a short-form certificate for a signature witnessing in a representative capacity.
  11. Adds a short-form certificate for a copy certification of an electronic record.
  12. Adds a certificate form for a remote notarization or remote online notarization for a principal located outside the United States.
  13. Adds a certificate form for a remote notarization or remote online notarization for a principal located in or outside Montana but within the United States.
  14. Adds a short-form certificate for a certification of fact or event.
  15. Adds a short-form certificate for a certification of life.
  16. Adds a short-form certificate for a certification of a photograph.
  17. Requires the official signature of a Notary Public to: (a) be filed with the Secretary of State on a form prescribed by the Secretary; (b) be reasonably similar to the official signature on file with the Secretary; (c) if executed on a tangible record, be in blue or black ink; (d) if executed on an electronic record, be an electronic image of the official signature submitted to the Secretary; and (e) be affixed to all tangible and electronic records.
  18. Requires an electronic official stamp, if an electronic image, to be the same format, color, content, and approximate size as the tangible official stamp and capable of being copied together with the record to which the stamp is affixed or attached or with which the stamp is logically associated.
  19. Clarifies that a Notary is the sole owner of the Notary’s stamping device.
  20. Prohibits a Notary from allowing any other individual to use the stamping device to perform a notarial act or for any other reason.
  21. Requires a Notary or the Notary’s personal representative or guardian to promptly notify the Secretary of State’s office on discovering that the Notary’s stamping device is lost, stolen, or otherwise inaccessible to the Notary.

Validity of Notarial Acts

  1. A notarial officer has personal knowledge of the identity of an individual appearing before the notarial officer if the individual is personally known to the notarial officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  2. Clarifies that the following failures by a Notary invalidate the notarial act performed by the Notary: (a) notarizing the Notary’s own signature; (b) notarizing a record in which the Notary is individually named or from which the Notary will directly benefit by a transaction involving the record, including as provided in MCA 1-5-625(2); (c) certifying a copy of an official record issued by a public entity, such as a birth, death, or marriage certificate, a court record, or a school transcript unless the notary is employed by the entity issuing or holding the original version of the record: (d) the Notary affixing the Notary’s official signature or stamp to any record that does not contain the Notary’s completed notarial certificate, unless otherwise directed by statute or rule; and (e) notarizing the signature of any individual on a record of a partnership or corporation if the Notary is a partner, stockholder, director, officer, or employee of the partnership or corporation and is individually named in the record or signs a record as a representative of that partnership or corporation.

Other Changes

  1. Requires the database of Notaries Pubic kept by the Secretary of State to describe any active or pending administrative or disciplinary action against a Notary.
  2. Makes technical, non-substantive changes.
Analysis:

In 2015, Montana enacted the Revised Uniform Law on Notarial Acts and with it provisions allowing Notaries to perform remote notarizations in limited circumstances. That particular enactment was quite extensive in that it replaced Montana's Notary statutes currently on the books. Now in 2019, House Bill 370 enacts another sweeping measure that deepens Montana's Notary statutes and thorougly revises its remote notarization provisions with expanded new laws that are much broader in scope. Under the new law, Notaries will be able to perform several new notarial acts, including certifying that a paper copy of an electronically notarized record is a true copy, certifying a fact or event, certifying that a person is alive (usually for foreign citizens collecting a pension from their country of origin), certifying a photograh, and performing marriages. Several of these new notarial acts are unprecedented, and Montana ploughs new ground for Notaries here. Certifying a fact or event is allowed in only one other state (Washington) and performing a marriage in 4 other states (Nevada, South Carolina, Florida, Maine). The new law expands requirements for the Notary journal, certificate of a notarial act and standards for performing notarial acts. Montana becomes the first state to allow "identity proofing" currently used to identify signers for remote notarial acts as a means of satisfactory evidence of identity for notarial acts performed in the physical presence of the Notary.

Read the bill text.

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