Inside Track: The New Chapter 140: Remote Online Notarization in Wisconsin:

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  • August
    05
    2020

    The New Chapter 140: Remote Online Notarization in Wisconsin

    The new law, which took effect May 1, 2020, allows a party requiring a notarial act to appear by audio-visual technology before the notary, while in a remote location.

    Wyatt D. Dittburner

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    Aug. 5, 2020 – Wisconsin Assembly Bill 293, Act 125, was signed March 4, 2020, and will be incorporated into Wisconsin statutes.

    Act 125 consolidated Wis. Stat. chapter 137 and Wis. Stat. section 706.07 into Wis. Stat. chapter 140, by allowing notarial acts to be performed by means of electronic communications under the new chapter 140.1

    This new law on remote online notarization (RON) went into effect May 1, 2020.

    About Chapter 140

    Chapter 140 adopts the language and structure from the Revised Uniform Law on Notarial Acts (2018) for purposes of remote online notarization.2

    Wis. Stat. section 140.145 governs remote online notarization in Wisconsin. A party requiring a notarial act may appear by audio-visual technology before the notary, while in a remote location. The individual may be in another state or even another country while appearing remotely before the Wisconsin notary.

    To perform a notarial act by electronic communication for a remote individual, the notary must

    1. be able to verify the individual’s identity;

    2. verify that there is continuity in the record or document before the notary and the individual; and

    3. create an audio-visual recording of the notarial act being performed.

    Wyatt D. DittburnerWyatt D. Dittburner (Marquette 2013) is with Burbach & Stansbury S.C., Milwaukee.

    In the event the notarial act is being performed for an individual who is outside the United States, additional requirements must be met.3

    Once a remote notarial act is performed by a Wisconsin notary, the certificate of notarial act, required by statute, must indicate that the act was performed remotely using communication technology to insure that the act complies with the rules of remote online notarization, as promulgated by the Wisconsin Department of Financial Institutions (DFI).4 Further, the notary performing the act must retain the recording for at least seven years following the creation of the electronic communication.5

    DFI is responsible for promulgating rules under Wis. Stat. section 140.145 regarding performance of remote online notarization. More specifically, DFI establishes communication technology standards and means of identity-proofing, approves providers of communication technology, establishes standards for retaining electronic records, and establishes any other rules regarding the means of remote online notarization.6

    Further, DFI considers the national standards for remote online notarization when it promulgates or modifies a rule governing performance of notarial acts.7

    Training and Providers

    Any notaries in Wisconsin, including lawyers, who would like to register must be trained in the standards for remote online notarization by an approved technology provider, and must also use electronic communication platforms that are approved by the department.

    The requirements are intended to insure identity-proofing, proper retention of records, recording of the process, credential verification, and other safeguards for the integrity of the notarial process, including the statutory requirement that both notaries and electronic communications providers keep confidential any documents or information contained in the process of remote online notarization.

    Once a Wisconsin notary has completed registration and training through an approved program, the program will send such confirmation to DFI, which keeps a record of all Wisconsin notaries approved for remote online notarization.

    Thus far, DFI has approved five technology providers for remote online notarization: Notarize.com, NotaryCam, Pavaso (only for real-estate transactions), DocVerify, and Nexsys. Some of these providers have costs associated with their services.8

    For a more information, visit DFI’s notary webpage at wdfi.org/Apostilles_Notary_Public_and_Trademarks/defaultNotary.htm.

    Not Universal

    The primary practical implication of this law change is that certain types of transactions may now be completed without the parties ever being in the same room. For example, real estate transactions may now be completed entirely remotely.

    It is important to note that certain other legal instruments cannot be notarized remotely. Notably, estate planning instruments, such as will, trusts, powers of attorney, and marital property agreements, expressly cannot be notarized electronically.9

    This article originally appeared in the July 2020 edition of the Wisconsin Journal of Family Law, published by the State Bar of Wisconsin Family Law Section. Interested in joining the Family Law Section? Visit the section’s webpage for more information.

    Endnotes

    1 2019 Wis. Act 125; 2019 Wis. Act 125: Wisconsin Legislative Council, Act Memo, April 6, 2020, Melissa Schmidt, senior staff attorney.

    2Id.

    3 Wis. Stat. § 140.145(3).

    4 Wis. Stat. § 140.145(4).

    5 Wis. Stat. § 140.145(6).

    6 Wis. Stat. § 140.145(8).

    7 Wis. Stat. § 140.145(9).

    8 Id.

    9 Wis. Stat. § 140.145(10).




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