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Law

WI Assembly Bill 293

Notary Law Update: WI Assembly Bill 293

State: Wisconsin

Summary:

Wisconsin enacts the Revised Uniform Law on Notarial Acts and becomes the twenty-third state to authorize Notaries to perform remote online notarizations.

Signed:  March 03, 2020

Effective:  May 01, 2020

Chapter: Act No. 125

Affects:

Repeals subchapter I (title) of Chapter 137 [precedes 137.01], 137.02, subchapter II (title) of Chapter 137 [precedes 137.11] and 706.07; renumbers 137.01 (title), 137.01 (5), 137.01 (5m) (title), 137.01 (8) and 137.01 (9) (title); renumbers and amends 137.01 (1), 137.01 (2), 137.01 (3), 137.01 (4), 137.01 (5m) (a), 137.01 (5m) (b), 137.01 (5m) (c), 137.01 (6), 137.01 (6m), 137.01 (7) and 137.01 (9); amends 15.01 (4), 15.185 (title), 20.575 (1) (g), Chapter 137 (title), 137.11 (intro.) and (4), 137.12 (1), (2) (intro.), (2m) (intro.), (2p), (2r) (intro.), (3), (4), (5) and (6), 137.13 (1), (2), (4) and (5), 137.14 (intro.) and (3), 137.16 (2) (intro.) and (4) (a) and (b), 137.20 (7), 236.21 (2) (a), 236.295 (1) (b), 244.05, 244.19 (1), 407.103 (4), 610.60 (2) (a), 703.33 (9), 706.05 (2) (b), 706.05 (8), 706.06 (1), 706.085 (2) (a), 708.15 (10) (g), 801.18 (11) (a), 801.18 (11) (e), 857.015, 867.045 (2), 867.046 (3), 887.01 (1), 887.01 (3), 887.015 (4) (b) 4., 968.12 (2) and 990.01 (38); and creates 15.185 (8), Chapter 140 (title), 140.01, 140.02 (5m) (a), 140.04, 140.05, 140.06, 140.07, 140.08, 140.09, 140.10, 140.11, 140.12, 140.13, 140.14, 140.145, 140.15, 140.16, 140.17, 140.18, 140.20, 140.24, 140.26, 140.27, 140.30, 140.31 and 140.34 of the Wisconsin Statutes.

Changes:

Definitions

  1. Defines “acknowledgment, “communication technology,” “Department,” domestic partner,” “electronic,” “electronic signature,” “foreign state,” “identity proofing,” “in a representative capacity,” “notarial act,” “notarial officer,” “notary public,” “official stamp,” “outside the United States,” “person,” “record,” “remotely located individual,” “sign,” “signature,” “stamping device,” “state,” “tamper-evident,” and “verification on oath or affirmation.

Authority to Perform and Refuse to Perform Notarial Acts

  1. Authorizes notarial acts to be performed in Wisconsin by (a) A Wisconsin Notary; (b) A judge, clerk, or deputy clerk of a court of record; (c) A court commissioner; (d) A register of deeds or deputy register of deeds; (e) A municipal judge: and (f) A county clerk or deputy county clerk.
  2. Clarifies that the signature and title of an individual performing a notarial act in Wisconsin are prima facie evidence that the signature is genuine and that the individual holds the designated title.
  3. Clarifies that the signature and title of (a) A Wisconsin Notary, a judge, clerk, or deputy clerk of a court of record, court commissioner, a register of deeds or deputy register of deeds, a municipal judge: and a county clerk or deputy county clerk conclusively establish the authority of the officer to perform the notarial act.
  4. Authorizes notarial officers to certify that a tangible copy of an electronic record is an accurate copy of the electronic record.
  5. Authorizes a Notary to refuse to perform a notarial act if: (a) The individual executing the record is not competent or has the capacity to execute the record, and (b) The individual’s signature is not knowingly and voluntarily made.
  6. Authorizes a notarial officer to refuse to perform a notarial act unless refusal is prohibited by law other than Chapter 140.
  7. Authorizes an individual who is physically unable to sign a record to direct an individual other than the notarial officer to sign the individual’s name on the record.
  8. Provides that the notarial officer who notarizes the signature of a third party directed to sign a record on behalf of an individual who is physically unable to sign must insert “Signature affixed by (name of other individual) at the direction of (name of individual)” or words of similar import.

Appearance and Identification of the Signer

  1. Provides that if a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer.
  2. Provides that a notarial officer has satisfactory evidence of identity for a notarial act if the officer can identify the individual by: (a) A passport, vehicle operator’s license, or government-issued identification card, which is current or expired not more than 3 years before performance of the notarial act. (b) Another form of government identification issued to an individual, which is current or expired not more than 3 years before the performance of the notarial act, contains the signature or a photograph of the individual and is satisfactory to the officer. (c) By a verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify based on a passport, vehicle operator’s license, or government-issued identification card, which is current or expired not more than 3 years before performance of the notarial act.
  3. Authorizes a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.

Prohibited Acts

  1. Prohibits a notarial officer from performing a notarial act with respect to a record to which the officer or the officer’s spouse or domestic partner is a party or in which either of them has a direct beneficial interest.

Certificate of Notarial Act, Seal and Official Stamp

  1. Requires a notarial act to be evidenced by a certificate of the notarial act.
  2. Requires a notarial certificate to be executed contemporaneously with the performance of the notarial act.
  3. Requires a notarial certificate to include (a) The jurisdiction in which the notarial act is performed; (b) The title of the notarial officer; and (c) The date of expiration of the Notary’s commission.
  4. Requires a notarial certificate to be dated and signed by a Notary with the Notary’s signature in the same manner as on file with the Department of Financial Institutions.
  5. Requires a Notary to affix or emboss the Notary’s official stamp on the notarial certificate of a tangible record.
  6. Permits, but does not require, a notarial officer other than a Notary Public to affix or emboss an official stamp on the notarial certificate of a tangible record if the certificate is signed and dated by the notarial officer, identifies the jurisdiction in which the notarial act is performed and contains the notarial officer’s title.
  7. Permits, but does not require, a notarial officer or Notary Public to attach or logically associate an official stamp on a notarial certificate on an electronic record if the certificate is signed and dated by the Notary, identifies the jurisdiction in which the notarial act is performed and contains the Notary’s title.
  8. Clarifies that the text of a notarial certificate is sufficient if it meets the requirements of Section 140.15(1) and (2), is in a short form as provided Section 140.16, is in a form otherwise allowed by Wisconsin law, is in a form allowed by the laws applicable in the jurisdiction in which the notarial act is performed, or sets for the actions of the notarial officer and the actions are sufficient to meet the requirements of Wisconsin law.
  9. Provides that by signing a notarial certificate, a notarial officer certifies the officer has complied with Sections 140.04, 140.05, and 140.06.
  10. Prohibits a notarial officer from signing a notarial certificate on a tangible or electronic record until the notarial act has been performed.
  11. Requires a notarial certificate to be securely affixed to, or logically associated with, the tangible or electronic record, and further requires a notarial officer to follow any standards for attaching, affixing or logically associating the notarial certificate, if the Department of Financial Institutions has established standards.
  12. Prescribes short form certificates for all authorized notarial acts.
  13. Prescribes the following elements for the Notary’s official stamp: The Notary’s name, jurisdiction, commission expiration date, and any other information required by the Department of Financial Institutions. (Please see the Analysis below for an important note on this provision.) 
  14. Requires an “engraved” seal (embosser) to be capable of being copied with the record to which it is attached or logically associated.
  15. Requires the Notary to disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable upon resignation or expiration of the Notary’s commission or upon expiration of the date set forth in the stamping device.
  16. Requires the Notary’s personal representative or any other person knowingly in possession of the stamping device to disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable upon the death or adjudication of incompetency of a Notary or former Notary.
  17. Requires a Notary or Notary’s personal representative to notify promptly the Department of Financial Institutions on discovering the Notary’s stamping device is lost or stolen.

Notarization of Electronic Records

  1. Permits a Notary to select one or more tamper-evident technologies to perform notarial acts on electronic records.
  2. Prohibits any person from requiring a Notary to perform a notarial act with respect to an electronic record with a technology the Notary has not selected.
  3. Requires a Notary to notify the Department of Financial Institutions that the Notary will be performing notarial acts with respect to electronic records and identify the technology the Notary intends to use prior to performing the Notary’s first notarial act on an electronic record.
  4. Clarifies that if the Department of Financial Institutions has established standards for approval of technology, the technology must conform to the standards, and further clarifies that the Department shall approve the technology if it complies with the standards.

Notarizations for Remotely Located Individuals

  1. Authorizes notarizations using communication technology for remotely located individuals except for the administration of an oath before a witness at a deposition.
  2. Clarifies that for purposes of determining the jurisdiction in which a notarial act is performed for a remotely located individual, the location of the Notary shall be determinative.
  3. Clarifies that a remotely located individual may comply with Section 140.06 by using communication technology to appear before a Notary Public.
  4. Requires a Notary who performs notarization using communication technology to identify remotely located individuals by: (a) personal knowledge; (b) verification on oath or affirmation from a credible witness appearing before and identified by the Notary under Section 140.07(2); or (c) two forms of identity proofing.
  5. Requires a Notary who performs notarization using communication technology to reasonably confirm that a record before the Notary is the same record in which the remotely located individual made a statement or on which the individual executed a signature.
  6. Requires a Notary, or a person acting on behalf and at the direction of the Notary, to create an audio-visual recording of the notarial act performed using communication technology.
  7. Requires a record that is notarized using communication technology for a remotely located individual who is outside of the United States must be filed with or relate to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or must involve property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States.
  8. Requires the act of making the statement or signing the record for a remotely located individual who is outside of the United States to not be prohibited by the foreign state in which the remotely located individual is located.
  9. Requires a certificate for a notarial act performed by communication technology to indicate that the notarial act involved a remotely located individual and was performed using communication technology.
  10. Clarifies that the short form certificates provided in Section 140.16 are sufficient for a notarial act involving a remotely located individual if they comply with any regulations adopted for the use of communication technology or contain a statement substantially as follows: “This notarial act involved a remotely located individual and the use of communication technology.”
  11. Requires a Notary to notify the Department of Financial Institutions of the Notary’s intent to perform notarial acts involving communication technology and the technologies the Notary intends to use prior to performing the Notary’s initial act using communication technology.
  12. Provides that using communication technology for remotely located individuals does not apply to: (a) Any law governing the creation and execution of wills, codicils, or testamentary trusts. (b) Any law governing the creation and execution of living trusts or trust amendments for personal use, not including a transaction, as defined in Section 137.11(15). (c) Any law governing the creation and execution of powers of attorney, not including a transaction, as defined in s. 137.11 (15). (d) Any law governing the creation and execution of marital property agreements. (e) Any law governing the creation and execution of powers of attorney for health care, declarations to physicians (living wills), and authorizations for use and disclosure of protected health care information.
  13. Requires the remote Notary council to adopt standards for notarial acts using communication technology for remotely located individuals.
  14. Requires the Department of Financial Institutions to promulgate rules for notarial acts involving communication technology and remotely located individuals.
  15. Clarifies that the rules promulgated by the Department may: (a) Prescribe the means of performing a notarial act involving a remotely located individual using communication technology. (b) Establish standards for communication technology and identity proofing. (c) Establish requirements, including registration, or procedures to approve providers of communication technology and the process of identity proofing. (d) Establish standards and a period for the retention of an audio-visual recording. (e) Establish any other requirement, not inconsistent with Chapter 140, relating to the performance of a notarial act for a remotely located individual.
  16. Requires a Notary, a guardian, a conservator, or an agent of a Notary or a personal representative of a deceased Notary to retain the audio-visual recordings of notarial acts or cause the audio-visual recording to be retained by a repository designated by or on behalf of the person required to retain the recordings.
  17. Provides that unless a different period is required by regulation, audio-visual recordings must be retained for a period of at least 7 years after the recording is made.

Privacy Provisions

  1. Requires a Notary or any provider of communication technology to keep confidential all documents and information provided to the Notary or provider of communication technology or contained in any documents reviewed by the Notary or provider of communication technology while performing his, her, or its duties as a Notary or provider of communication technology.
  2. Permits a Notary or provider of communication technology to release the documents or the information to a third person only with the separate written consent, independent from any other consent, permission, disclosure, or acknowledgment, in a manner consistent with applicable law, of the person who requested the services of the Notary or the provider of communication technology.
  3. Provides that the privacy provisions in Section 140.02(5m)(b) do not apply when the Notary or the provider of communication technology is complying with a request from a regulatory agency or supervisory agency or is responding to a lawful subpoena or court order.
  4. Allows a Notary or provider of communication technology to release deposition transcripts to all parties of record in an action, but clarifies that a Notary or provider of communication technology may not release deposition transcripts that have not been made part of the public record to a third party without the written consent of all parties to the action and the deponent unless required by a regulatory agency or supervisory agency or in response to a lawful subpoena or court order.
  5. Applies the $500 fine for a Notary violating the privacy provisions to providers of communication technology and clarifies the fine is for each violation.
  6. Clarifies that the Department of Financial Institutions will set maximum fees Notaries may charge for performing notarial acts for remotely located individuals.

Recognition of Authority to Perform Notarial Acts

  1. Recognizes the notarial acts performed by the following officers of another state as having the same effect under Wisconsin law as if performed by a Wisconsin notarial officer: (a) a Notary of that state; (b) a judge, clerk or deputy clerk of a court of that state and (c) any other individual authorized by the law of that state to perform the notarial act; and further provides that the signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title, and the signature and title of a notarial officer described in sections (a) and (b) conclusively establish the authority of the notarial officer to perform the notarial act.
  2. Recognizes the notarial acts performed by the following officers of a federally-recognized American Indian tribe as having the same effect under Wisconsin law as if performed by a Wisconsin notarial officer: (a) a Notary of that tribe; and (b) any other individual authorized by the law of the tribe to perform the notarial act; and further provides that the signature and title of an individual performing a notarial act under the authority of and in the jurisdiction of a federally recognized Indian tribe are prima facie evidence that the signature is genuine and the individual holds the designated title, and the signature and title of a notarial officer described in sections (a) and (b) conclusively establish the authority of the notarial officer to perform the notarial act.
  3. Recognizes the notarial acts performed by the following officers under federal law as having the same effect under Wisconsin law as if performed by a Wisconsin notarial officer: (a) a judge, clerk or deputy clerk of a court; (b) an individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law; (c) an individual designated a notarial officer by the United States Department of State for performing notarial acts overseas; and (d) any other individual authorized by federal law to perform the notarial act; and further provides that the signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title, and the signature and title of a notarial officer described in sections (a) and (b) and (c) conclusively establish the authority of the notarial officer to perform the notarial act.
  4. Provides that if a notarial act is performed under the authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, a notarial act has the same effect under Wisconsin law as if performed by a Notary of Wisconsin.
  5. Provides if the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.
  6. Provides that the signature and official stamp of an individual holding an office described are prima facie evidence that the signature is genuine and the individual holds the designated title.
  7. Provides that an apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the Convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
  8. Provides that a consular authentication issued by an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect 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.

Validity of Notarial Acts

  1. Provides that except as provided in Section 140.04(2), the failure of a notarial officer to perform a duty or meet a requirement specified in Chapter 140 does not invalidate a notarial act performed by the notarial officer.
  2. Provides that the validity of a notarial act under the new chapter 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 upon other law; and that the Act does not validate a purported notarial act performed by an individual who does not have the authority to perform the act.

Other Provisions

  1. Clarifies that at least 30 days before the expiration of a Notary’s commission the Department of Financial Institutions shall provide (formerly mail) notice of the expiration date to the Notary.
  2. Creates the remote Notary council and specifies the composition of the council for 3-year terms.
  3. Requires the remote Notary council to review the statutes related to notarial acts for remotely located individuals and recommend to the legislature any changes in the statutes that the council finds necessary or advisable.
  4. Repeals the office of commissioner of deeds.
  5. Makes technical changes.
  6. Makes conforming changes.
  7. Requires the Department of Financial Institutions to promulgate rules to implement the new law.
  8. Requires the rules promulgated by the Department of Financial Institutions to: (a) Establish maximum fees that may be charged by a Notary for performing a notarial act for a remotely located individual. (b) Prescribe the manner of performing notarial acts regarding tangible and electronic records. (c) Include provisions to ensure that any change to or tampering with a record bearing a certificate of a notarial act is self-evident. (d) Include provisions to ensure integrity in the creation, transmittal, storage, or authentication of electronic records or signatures. (e) Prescribe the process of granting, renewing, conditioning, denying, suspending, or revoking a notary public commission and assuring the trustworthiness of an individual holding a commission as a notary public. (f) Include provisions to prevent fraud or mistake in the performance of notarial acts.
  9. Authorizes the Department of Financial Institutions to promulgate emergency rules.
  10. Authorizes the Department of Financial Institutions to investigate to determine whether a person has violated, is violating, or is about to violate Chapter 140 or a rule promulgated or order issued under Chapter 140.
  11. Provides that for an investigation, the Department of Financial Institutions may administer oaths and affirmations, issue subpoenas, take evidence, require the filing of statements, require testimony, and require the production of any records that the department considers relevant or material to the investigation.
  12. Authorizes the Department of Financial Institutions to revoke, suspend, or restrict any commission or registration issued under Chapter 140 if the Department determines that the person holding the commission or registration has refused to comply with an investigative demand or has violated, is violating, or is about to violate this chapter or any rule promulgated or order issued under Chapter 140.
  13. Requires the Department of Financial Institutions to maintain a database of Notaries Public through which an individual may verify the Notary’s authority to perform notarial acts and whether the Notary has notified the Department that the Notary will be performing notarial acts for remotely located individuals.
Analysis:

Wisconsin becomes the twenty-third state overall and the first in 2020 to allow Notaries to perform notarial acts for remotely located individuals (remote online notarization or RON). This new authorization comes through enactment of the Revised Uniform Law on Notarial Acts. The Act takes effect on May 1, 2020. The Department of Financial Institutions is authorized to promulgate emergency regulations to implement the RULONA and permanent regulations after that. One new law under AB 293 is the requirement for a Notary’s official stamp to include the Notary’s commission expiration date. Previously, the law did not authorize the Notary to include the commission expiration date on the seal. NOTE: The Wisconsin Department of Financial Institutions has clarified that there is an irreconcilable statutory conflict between WI 140.02(3)(a) and WI 140.17(1). The former does not allow the commission expiration date in the seal while the latter requires it. As a result, the Department will not require the Notary's seal or official stamp to contain the commission expiration date but will allow a Notary to choose to include or not include it. One other new seal provision affects Notaries who use embosser seals. Under previous law, the embosser did not have to be inked. Under the RULONA, the embossed seal must be capable of being copied on the document or record to which it is embossed. It is possible that the Department of Financial Institutions could issue emergency regulations on these matters.

Read the new law.

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