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Law

WA Senate Bill 5641

Notary Law Update: WA Senate Bill 5641

State: Washington

Summary:

Senate Bill 5641 authorizes Washington electronic records Notaries Public to perform notarial acts for remotely located individuals (remote online notarizations).

Signed:  April 26, 2019

Effective:  October 01, 2020

Chapter: 154

Affects:

Amends Sections 9A.60.050, 42.45.020, 42.45.040, 42.45.130, 42.45.140, 42.45.900, 65.08.030, 65.08.070 of and adds an as yet uncodified section to the Revised Code of Washington.

Changes:
  1. Defines "communication technology," "foreign state," "identity proofing," "outside the United States," and "remotely located individual."
  2. Clarifies that a remotely located individual may comply with the requirement to personally appear for a notarial act by using communication technology.
  3. Allows an electronic records Notary Public to perform a notarial act using communication technology for a remotely located individual if he or she is able to identify the individual through personal knowledge, the oath or affirmation of a credible witness, or using at least two different types of identity proofing.
  4. Allows an electronic records Notary Public to perform a notarial act using communication technology for a remotely located individual if the electronic records Notary Public is able reasonably to confirm that a record before the electronic records Notary Public is the same record in which the remotely located individual made a statement or on which the individual executed a signature.
  5. Allows an electronic records Notary Public to perform a notarial act using communication technology for a remotely located individual if the electronic records Notary Public, or a person acting on behalf of the electronic records Notary Public, creates an audiovisual recording of the performance of the notarial act.
  6. Allows an electronic records Notary Public to perform a notarial act using communication technology for a remotely located individual outside the United States if the record: (a) is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States or (b) involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
  7. Requires a certificate of notarial act using communication technology for a remotely located individual to indicate the act was performed using communication technology.
  8. Provides that a short-form certificate for a notarial act using communication technology for a remotely located individual is sufficient if it complies with rules adopted by the Director of Licensing or is in the form provided in RCW 42.45.140 and contains a statement substantially as follows: "This notarial act involved the use of communication technology."
  9. Requires an electronic records Notary Public, a guardian, conservator, or agent of an electronic records Notary Public, or a personal representative of a deceased electronic records Notary Public to retain the audiovisual recording of the notarial act for a remotely located individual or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording.
  10. Provides that unless a different period is required by rule, the recording of a notarial act for a remotely located individual must be retained for a period of at least ten years after the recording is made.
  11. Requires an electronic records Notary Public to notify the Director of Licensing that he or she will be performing notarial acts with respect to remotely located individuals and identify the technologies for intended use prior to performing the initial notarial act for a remotely located individual.
  12. Provides that if the Director of Licensing has established standards for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards.
  13. Provides that the Director of Licensing may adopt rules for performing notarial acts with respect to remotely located individuals and provides standards for the rules.
  14. Allows a notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record.
  15. Authorizes a recording officer to accept for recording a tangible copy of an electronic record containing a notarial certificate, if the notarial officer executing the certificate certifies that the tangible copy is an accurate copy of the electronic record.
  16. Provides that a notarial officer is guilty of false certification if he or she knowingly certifies falsely that a tangible copy of an electronic record is an accurate copy of the electronic record.
Analysis:

Washington state follows Idaho and North Dakota in enacting the 2018 amendments to the Revised Uniform Law on Notarial Acts authorizing notarizations for remotely located individuals (so-called remote online notarizations). The amendment modifies how Notaries may identify remotely located individuals. Like for paper notarizations performed in the physical presence of the Notary, a Washington electronic records Notary Public may rely on his or her personal knowledge of the individual or use a credible witness who swears or affirms that the witness knows the individual. Unlike paper notarizations performed in the physical presence of the Notary, an electronic records Notary Public may use two forms of "identity proofing." "Identity proofing" is defined as "a process or service by which a third person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources." The Director of Licensing is authorized to adopt rules for these new notarial acts. A delayed effective date of October 1, 2020 will provide ample time for the adoption of rules.

Read the bill text.

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