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Sunday, June 09, 2019

Electronic Notarization Comes Alive in Florida, and Electronic Notarization and Witnessing of Wills and Trusts Comes Along for the Ride [Florida]

A 78 page bill on the subject of electronic and remote notarization and witnessing of documents was approved by the governor two days ago. Here is some info to start to get you up to speed.

General Provisions:

  • In addition to the statute, the Florida Department of State will adopt rules that online notaries will need to follow.
  • Online notarization is conducted through and requires audio-video communication technology.
  • Notarial certificates should indicate whether they are notarizing in person or online. Sample certificates are in the new statute.
  • The online notary must confirm the identify of the principal, either by personal knowledge or all of the following: remote presentation of identification, credential analysis of identification provided, and identity proofing based on knowledge-based authentication or similar method. Credential analysis involves a third party aiding the notary in affirming the validity of government-issued identification credentials. Identify proofing involves a a third party affirming the identity of an individual through use of public or proprietary data sources, including knowledge-based authentication (question and answer systems) or biometric verification.
  • Errors and omissions insurance is required by the notary, his or her employer, or a remote online notarization (RON) service provider.
  • A notary can notarize even if the principal or any witnesses are located outside of Florida.
  • A notary can serve as an online notary only after taking a course of study.
  • A notary will need to work with a RON services provider to use their communication technology and processes for credential analysis and identity proofing.
  • A notary will need to provide a $25,000 bond.
  • A notary will have to keep an electronic journal of online notarizations, and keep them secured and backed up. The record will have to record various information about the notarization.
  • The notary will have to retain an copy of the recording of the audio-video communication relating to the notarization.
  • The notary may not charge more than $25. It may also charge for copies provided of electronic records, subject to caps and restrictions.
  • The notary can also supervise the witnessing of documents online in a similar manner to notarizing the signature of the principal signor. The witness need not be in the physical presence of the signor or notary. A remote witness must be a resident of and physically located within the U.S. or a territory of the U.S., presumably to make them available to court proceedings if necessary.

Special provisions for wills, trusts with testamentary aspects, health care advance directives, waivers of spousal rights, or powers of attorney authorizing certain types of acts:

  • The notary must ask certain questions of the principal signor relating to impairment or disability if the witnesses are not in the physical presence of the principal signor. If they are not properly answered, then remote witnessing is ineffective.
  • If the principal signor is a “vulnerable adult” as defined in Fla.Stats. §415.102, the witnesses must be in the presence of the principal signor. If they are not, the witnessing is invalid.
  • If witnesses are not in the physical presence of the signor, then additional questions are asked of the principal signor for thelvideo/audio record are undertaken by the notary.
  • An electronic will or codicil is revoked by deleting or obliterating an electronic record, with the intent to revoke, as provided by clear and convincing evidence.
  • Remote witnessing requires that the witness hear the signer acknowledging the signer’s signature.
  • Self-proof affidavits for wills can be electronically witnessed and notarized, if the electronic record that contains the will is held by a qualified custodian at all times before being offered to probate.
  • The electronic will can be admitted to probate if filed through the e-filing portal, and is deemed to be an original of the electronic will. A paper copy of an electronic will which is certified by a notary public to be a true and correct copy can also be admitted to probate as an original will.

Some preliminary thoughts/questions of mine:

  • How much will RON service providers charge?
  • How many notaries will go through the hassle of qualifying to be an online notary and meeting all the requirements for qualification and online notarizations (including the storage and delivery of recordings and the electronic documents that are notarized) – or will such services end up being provided almost exclusively by companies engaged in the business of providing online notarization? The Act has 70+ pages of rules and requirements, and of course more will be coming by regulation.
  • What happens when electronic records are inadvertently destroyed or are not available? Of course, paper records can suffer the same fate – but think about ransomware and other electronic hacking that the has the potential to void and destroy hundreds of thousands of electronic documents at one time.
  • If remote witnessing is not available for a will or similar document (e.g., the signor is a vulnerable adult), testators and signors of such documents may think they have a valid document when they in fact do not.

Good thing? Bad thing? Probably both, but it doesn’t really matter since it is now the law of the land (subject to a delayed effective date). The old way of doing things is still valid – it remains to be seen how widespread the use of electronic notarization and witnessing (and how widespread any resulting fraud and other problems)  will be. My gut instinct is that taking a process that is fairly straightforward (notarization) and subjecting it to a multitude of rules, regulations, costs, and new business interests suggests that perhaps the old ways may be the better way, especially as to testamentary documents.

The foregoing is based on a preliminary read of the new law only. There will be a lot of real ink and electronic ink spilled on this subject for sure. Let the articles, seminars, books, and litigation commence!

Read the new law here.

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