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NV Assembly Bill 413

Legislation

State: Nevada
Signed: June 09, 2017

Effective: July 01, 2018
Chapter: 511

Summary

AB 413 enacts the most substantive online electronic notarization law of any state to date that also includes provisions allowing electronic Notary to notarize electronic wills and other estate-related records.

Affects

Adds as yet uncodified sections to Nevada Revised Statutes (NRS) Chapters 132, 133 163 and 240, amends NRS Sections 132.025, 132.119, 133.050, 133.085, 133.120, 136.185, 163.0016, 163.0018, 163.00185, 163.0095, 240.181, 240.182, 240.185, 240.186, 240.187, 240.189, 240.191, 240.192, 240.194, 240.195, 240.196, 240.197, 240.198, 240.199, 240.201, 240.202, 240.203, 240.204, 719.200, and repeals NRS Section 240.193.

Changes

Definitions

  1. Defines “audio-video communication” as communication by which a person is able to see, hear and communicate with another person in real time using electronic means.
  2. Defines “credential” as a tangible record evidencing the identity of a person.
  3. Defines “credential analysis” as process or service that complies with any rules or regulations adopted by the Secretary of State through which a third party affirms the validity of a government-issued identification credential or any data thereon through the review of data sources.
  4. Defines “remote presentation” as the transmission of a quality image of a government-issued identification credential to an Electronic Notary through communication technology for the purpose of enabling the Electronic Notary to identify the person appearing before the electronic Notary and to perform a credential analysis.
  5. Defines “dynamic knowledge-based authentication assessment” as an identity assessment that is based on a set of questions formulated from public or private data sources for which the person taking the assessment has not previously provided an answer and that meets any rules or regulations adopted by the Secretary of State.
  6. Defines “in the presence of” or “appear before” means being: (a) in the same physical location as another person and close enough to see, hear, communicate with and exchange credentials with that person; or (b) in a different physical location from another person but able to see, hear and communicate with the person by means of audio-video communication that meets any rules or regulations adopted by the Secretary of State.

Registration

  1. Provides that before an Electronic Notary performs electronic notarial acts using audio-video communication, he or she must register with the Secretary of State pursuant to NRS 240.192 and identify the technology that he or she intends to use, which must conform to any rules or regulations adopted by the Secretary of State.
  2. Requires a Notary who registers with the Secretary of State as an Electronic Notary for the first time must successfully complete any required course of study on electronic notarization required pursuant to NRS 240.195 before filing such registration with the Secretary of State.
  3. Allows a Notary to register with the Secretary of State as an Electronic Notary and thereafter perform the functions of an Electronic Notary without completing any course of study on electronic notarization required pursuant to NRS 240.195 if, at the time of registration, the course of study is not yet offered by the Secretary of State or a vendor approved by the Secretary of State.
  4. Provides that if a Notary registers and performs the functions of an Electronic Notary without first completing any required course of study on electronic notarization, he or she must complete the required course of study and pass any required examination within 120 days after the course of study is first offered by the Secretary of State or a vendor approved by the Secretary of State; and further provides that the registrant shall thereafter complete any required course of study in accordance with NRS 240.195(3)(b) and (c), as applicable.
  5. Clarifies that an Electronic Notary “registers” with the Secretary of State and is not “appointed.”
  6. Clarifies that at the time of registration as an Electronic Notary, a registrant must be a notarial officer in Nevada who has complied with the requirements related to taking an oath and filing a Notary bond set forth in NRS 240.030 and 240.033.
  7. Clarifies that the $50 registration fee to become an Electronic Notary is distinct from the application fee required by NRS 240.030 to become a Notary.
  8. No longer requires a separate $10,000 bond as an Electronic Notary.
  9. Requires the registration as an Electronic Notary to be submitted by electronic mail to nvnotary@sos.nv.gov or to another email address as designated by the Secretary of State, unless the Secretary establishes a different process for receiving registrations.
  10. Requires the registration as an Electronic Notary to include all information required to be included in an application for a Notary commission under NRS 240.030.
  11. Provides that unless the Secretary of State establishes a different process for the payment of the registration fee as an Electronic Notary, the registration fee must be paid by check or draft, made payable to the Secretary of State and transmitted to the Office of the Secretary of State.
  12. Clarifies that registration as an Electronic Notary shall be deemed effective upon the payment of the registration fee if the registrant has satisfied all other applicable requirements.
  13. Clarifies that the period of registration as an Electronic Notary is no longer 2 years for an initial registration, but is coterminous with the Electronic Notary’s term of appointment as a Notary.
  14. Requires renewal registration as an Electronic Notary to be made at the same time a person renews his or her Notary appointment.
  15. Provides that in addition to any courses of study a Notary is required to complete under NRS 240.018, the Secretary of State may, by rule or regulation, require a Notary who registers with the Secretary of State as an Electronic Notary under NRS 240.192 to complete an additional course of study on electronic notarization.
  16. Requires the course of study for Electronic Notaries to be taken online and be not more than 3 hours, including instruction and completion of an examination of course content.

Standards for Remote Notarial Acts

  1. Authorizes an Electronic Notary to perform any of the acts set forth in NRS 240.196 using audio-video communication in accordance with NRS 240.181 to 240.206, inclusive, and sections 30 to 38.7, inclusive, of AB 413 and any rules or regulations adopted by the Secretary of State.
  2. Provides that if an electronic notarial act is performed using audio-video communication: (a) the technology used must allow the persons communicating to see and speak to each other simultaneously; (b) the signal transmission must be in real time; and (c) the electronic notarial act must be recorded in accordance with section 37 of AB 413.
  3. Provides that an Electronic Notary may perform an electronic notarial act using audio-video communication in accordance with NRS 240.181 to 240.206, inclusive, and sections 30 to 38.7, inclusive, of AB 413 and any rules or regulations adopted by the Secretary of State for a person who is physically located: (a) in Nevada; (b) outside Nevada but within the United States; or (c) outside the United States if certain requirements are met.
  4. Provides that for an Electronic Notary to perform an electronic notarial act for a person located outside of the United States: (a) the Electronic Notary must have no actual knowledge of the electronic notarial act being prohibited in the jurisdiction in which the person is physically located; and (b) the person placing his or her electronic signature on the electronic document must confirm to the Electronic Notary that the requested electronic notarial act and the electronic document: (i) are part of or pertain to a matter that is to be filed with or is currently before a court, governmental entity or other entity in the United States; (ii) relate to property located in the United States; or (iii) relate to a transaction substantially connected to the United States.
  5. Provides that an Electronic Notary who performs an electronic notarial act performed by means of audio-video communication has satisfactory or documentary evidence of the identity of the person if the Electronic Notary confirms the identity of the person by: (a) personal knowledge; (b) each of the following: (i) remote presentation by the person of a government-issued identification credential that contains a photograph and the signature of the person; (ii) credential analysis of the government-issued identification credential and the data thereon; and (iii) a dynamic knowledge-based authentication assessment; (c) any other method that complies with any rules or regulations adopted by the Secretary of State; or (d) a valid digital certificate pursuant to NRS 720.030 that complies with any rules or regulations adopted by the Secretary of State.
  6. Clarifies that an Electronic Notary who performs an electronic notarial act by means of audio-video communication must be located within Nevada at the time of the electronic notarial act.
  7. Clarifies that the validity of an electronic notarial act performed by a Nevada electronic Notary by means of audio-video communication will be determined by applying Nevada law.
  8. Clarifies that a notarial act performed by an Electronic Notary in Nevada for a person located outside of Nevada by means of audio-video communication shall not be deemed to be performed outside of Nevada.

Records of Remote Notarial Acts

  1. Clarifies that an Electronic Notary must keep an electronic journal of each electronic notarial act which includes the requirements of NRS 240.120(1) through (5), except that the journal is not required to include the electronic signatures of the person for whom the electronic act was performed and any witnesses.
  2. Requires an Electronic Notary who performs electronic notarial acts to: (a) describe each electronic notarial act in the electronic journal and specify whether the electronic notarial act was performed using audio-video communication; (b) maintain and protect the electronic journal at all times under his or her sole control; and (c) provide for lawful inspection and copying of the electronic journal.
  3. Clarifies that an Electronic Notary may maintain more than one electronic journal to record electronic notarial acts.
  4. Clarifies that the fact that the employer or contractor of an Electronic Notary keeps a record of electronic notarial acts does not relieve the Electronic Notary of the duty to keep an electronic journal or any duty required under NRS 240.201.
  5. Requires an electronic journal to: (a) enable access by a password or other secure means of authentication; and (b) be capable of providing tangible or electronic copies of any entry.
  6. Clarifies that upon surrender, revocation or expiration of a registration as an Electronic Notary, all notarial records required pursuant to NRS 240.001 to 240.206, inclusive, and sections 30 to 38.7, inclusive, of AB 413, except as otherwise provided by law, be kept by the electronic Notary for a period of 7 years after the termination of the registration of the electronic Notary.
  7. Requires an Electronic Notary to arrange for a recording of each electronic notarial act performed using audio-video communication.
  8. Requires an Electronic Notary, before performing any electronic notarial act using audio-video communication, to inform all participating persons that the electronic notarization will be electronically recorded.
  9. Requires an Electronic Notary to note the means of identification used to identify the signer of an electronic notarial act performed by means of audio-video communication in the recording for the electronic notarial act as follows: (a) if by personal knowledge, the recording of the electronic notarial act must include an explanation by the Electronic Notary as to how he or she knows the person and how long he or she has known the person; (b) if by a credible witness: (i) the witness must appear before the Electronic Notary; and (ii) the recording of the electronic notarial act must include a statement by the Electronic Notary as to whether he or she identified the credible witness by personal knowledge or satisfactory evidence; and an explanation by the credible witness as to how he or she knows the person for whom the electronic notarial act is being performed and how long he or she has known the person.
  10. Requires an Electronic Notary to keep the recording of an electronic notarial act performed by means of audio-video communication for a period of not less than 7 years, regardless of whether the electronic notarial act was actually completed.

Fees for Remote Notarial Acts

  1. Increases the fee an Electronic Notary may charge from $10 to $25.
  2. Authorizes an Electronic Notary to charge a reasonable fee to recover any cost of providing a copy of an entry or a recording of an audio-video communication in an electronic journal.
  3. Provides that an Electronic Notary who is an officer or employee of Nevada or a local government shall not charge a fee for an electronic notarial act that the Electronic Notary performs within the scope of such employment.
  4. Clarifies that NRS 240.197 (the fee section) does not apply to any compensation for services provided by an Electronic Notary which do not constitute electronic notarial acts or comply with the other requirements of NRS Chapter 240.

Electronic Wills

  1. Modifies the Uniform Electronic Transactions Act (NRS 719.200) to allow for electronic signatures in creating and executing wills, codicils and testamentary trusts.
  2. Defines “audio-video communication” and states that a person shall be deemed to be in the presence of or appearing before another person if such persons are in: (a) the same physical location; or (b) different physical locations but can communicate with each other by means of audio-video communication.
  3. Defines “electronic will” as a will of a testator that is created and maintained in an electronic record, and contains the date and electronic signature of the testator, and which includes at least one of the following: (a) an authentication characteristic of the testator; (b) the electronic signature and electronic seal of an Electronic Notary, placed on the will in the presence of the testator and in whose presence the testator placed his or her electronic signature; or (c) The electronic signatures of two or more attesting witnesses, placed on the will in the presence of the testator and in whose presence the testator placed his or her electronic signature.
  4. Authorizes an Electronic Notary to notarize the signature or electronic signature of a person who is not in the physical presence of the Electronic Notary in any proceeding relating to an electronic will.
  5. Authorizes an Electronic Notary to notarize any document relating to a will, codicil or testamentary trust in any proceeding relating to an electronic will.
  6. Provides for the self-proving of electronic wills.
  7. Provides that if a testator or a witness signing an affidavit or declaration described in NRS 133.050(1) appears by means of audio-video communication, the form for the affidavit or declaration, as set forth in subsections 2 and 3, respectively, must be modified to indicate that fact.
  8. Provides for the purposes of a declaration or affidavit made by an attesting witness as described in NRS 133.050, for all purposes relating to the execution and filing of any document with the court in any proceeding relating to an electronic will and for purposes of executing a power of attorney pursuant to NRS 162A.220, an advance directive or any document relating to an advance directive, an Electronic Notary may electronically notarize electronic documents, including without limitation, documents constituting or relating to an electronic will in accordance with NRS 240.181 through 240.206, and uncodified sections 30-38.7 of AB 413.
  9. Provides that a document shall be deemed to be executed in Nevada and will be governed by the laws of Nevada and subject to the jurisdiction of the courts of Nevada if any attesting witnesses or an Electronic Notary whose electronic signatures are contained in the document were physically located within Nevada at the time the document was executed.
  10. Provides that subject to the provision of any applicable court rules, a video recording or other electronic record may be admissible as evidence of (a) the proper execution of a trust; (b) the intentions of a settlor; (c) the mental state or capacity of a settlor; (d) the authenticity of a trust or (e) matters that are determined by a court to be relevant to the administration of a trust.
  11. Clarifies that the validity of a notarial act performed by an Electronic Notary must be determined by applying the laws of the jurisdiction in which the Electronic Notary is commissioned or appointed.

Other Provisions

  1. Expands the definition of “electronic notarial act” to include certifying a true and correct copy and performing such other duties as prescribed by law.
  2. Requires a certificate for an electronic notarial act performed using audio-video communication to include language explicitly stating that the notarial act was performed using audio-video communication.
  3. Requires an Electronic Notary to use technology to make the electronic document tamper-evident upon completion of the electronic notarial act.
  4. Requires an Electronic Notary within 10 days after discovering that his or her electronic signature or electronic seal has been stolen, lost, damaged or otherwise rendered incapable of affixing a legible image, to notify the Secretary of State and the entity from which the Electronic Notary obtained the electronic signature or electronic seal in writing, including, without limitation, a signature using the name under which the Electronic Notary is registered.
  5. Requires an Electronic Notary, upon learning that the technology or device used to create his or her electronic signature has been rendered ineffective or insecure, to cease performing electronic notarial acts until: (a) a new technology or device is acquired; and (b) the Electronic Notary sends an electronic notice to the Secretary of State that includes the electronic signature of the Electronic Notary required under NRS 240.192(2)(c) relating to the new technology or device.
  6. Renames the “Electronic Notary Public Authorization Act” as “the Electronic Notarization Enabling Act.”
  7. Makes conforming changes.

Repealed Provisions

  1. Repeals Section 4 of Assembly Bill 476.
  2. Repeals Section 5 of Assembly Bill 476.
  3. Repeals Section 6 of Assembly Bill 476.
  4. Repeals Section 8 of Assembly Bill 476.
  5. Repeals Section 9 of Assembly Bill 476.

Effective Date

  1. Sets July 1, 2017 as the effective date for Sections 1-28 of AB 413 (provisions dealing with electronic wills and trusts) and Section 61 (provision stating the provisions of AB 413 are intended to supersede any provisions of AB 476 (see New Law Update) that conflict with AB 413).
  2. Provides that Sections 29-55 and 62 (provisions related to NRS Chapter 240) are effective (a) upon passage and approval for the purpose of adopting any rules and regulations and performing any other preparatory administrative tasks that are necessary to carry out the provisions of this act; and (b) on July 1, 2018, for all other purposes.
  3. Provides that Sections 56-60 of AB 413 (Sections 5, 6, 8 and 9 of AB 476 passed during the current legislative session) take effect immediately upon enactment.
Analysis

AB 413 enacts the most substantive “remote” electronic notarization laws of any state to date. The bill was subject to an intense back-and-forth between both chambers of the Nevada Legislature in the days just before the deadline for adjournment. AB 413 is also the first substantive law enacted in 2017 on electronic last wills (note: as of the date of enactment, Florida HB 277 was awaiting the Governor’s signature). Unlike the Florida bill, which only modified the Florida Statutes Estates and Trusts title, AB 413 amends Nevada’s Notary statutes with exhaustive provisions regulating remote electronic notarial acts. AB 413’s remote provisions are based in part on the NNA’s Model Electronic Notarization Act, released in January, 2017.

Note: AB 413 also repeals several sections of Assembly Bill 476, which was passed by the Legislature prior to the enactment of AB 413. Most of the repealed provisions are included in AB 476. The effect of the repealers is to delay their implementation until July 1, 2018 instead of on July 1, 2017 when AB 476 took effect.

Read Assembly Bill 413.

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