On March 26, 2020, Illinois Governor Pritzker signed an executive order allowing for “remote notarization via two-way audio-video technology”. It’s limited to the duration of the Gubernatorial Disaster Proclamation related to the outbreak of COVID-19.
This means that home sellers who are concerned with exposure to COVID-19, may be able to sign all of their closing documents from their home. Before the executive order, notarized or witnessed closing documents, like a deed, bill of sale, affidavit of title or a power of attorney, needed to be physically signed in front of the person notarizing and/or witnessing the signature.
Now, as long as the process used to sign the documents meets the requirements of the executive order, the documents can be legally notarized and/or witnessed remotely.
Here are the requirements from the order:
- The two-way audio-video communication technology must allow for direct, contemporaneous interaction between the individual signing the document (“the signatory”) and the witness by sight and sound;
- The two-way audio-video communication technology must be recorded and preserved by the signatory or the signatory’s designee for a period of at least three years;
- The signatory must attest to being physically located in Illinois during the two-way audio-video communication;
- The witness must attest to being physically located in Illinois during the two-way audio-video communication;
- The signatory must affirmatively state on the two-way audio-video communication what document the signatory is signing;
- Each page of the document being witnessed must be shown to the witness on the two-way audio-video communication technology in a means clearly legible to the witness and initialed by the signatory in the presence of the witness;
- The act of signing must be captured sufficiently up close on the two-way audio-video communication for the witness to observe;
- The signatory must transmit by fax or electronic means a legible copy of the entire signed document directly to the witness no later than the day after the document is signed;
- The witness must sign the transmitted copy of the document as a witness and transmit the signed copy of the document back via fax or electronic means to the signatory within 24 hours of receipt; and,
- If necessary, the witness may sign the original signed document as of the date of the original execution by the signatory provided that the witness receives the original signed document together with the electronically witnessed copy within thirty days from the date of the remote witnessing.
Before using this new option, it is very important to verify the process, procedure and documentation with the title company involved in the transaction. Even though a process may be legally allowed, it is still important to verify that the documents can be recorded properly and create an insurable transfer of ownership. Some title companies might take care of the whole process themselves.
It is possible to use remote notarization for a Buyer’s mortgage and loan documents, but it is still up to each individual lender to decide if they want to accept or allow the loan documents to be signed using this procedure.
Although the executive order is temporary, it is a great way to help avoid unnecessary exposure and continue the observation of safe distance requirements from the Stay at Home Order.
The same remote notarization can arguably be used for estate planning documents like wills, trusts, durable powers of attorney for property, and powers of attorney for health care. This provides options for people that want to update their estate plans and never leave their home.
This could be particularly useful for first responders, health care professionals or anyone that is self-quarantined due to the COVID-19 outbreak. It is also possible that the Remote Notarization Order could even allow them to sign their documents at a hospital or health care facility.
Stay Safe,
Adam
