By: Ray Prather, J.D., CPA, CFF
On July 23, 2021, Gov. Pritzker signed Public Act 102-0160 amending the Illinois Notary Public Act. The amendments permanently allow notary publics to perform remote notarial acts, bring electronic notary publics to Illinois, and add education and journal requirements for notary publics. On June 5, 2023, the Illinois Secretary of State’s Office (IL SOS) adopted administrative rules (Rules) that make Public Act 102-0160 effective and provide guidance for Illinois notaries moving forward.
The Rules totaling 132 pages will be available at 14 Ill. Admin. Code 176.10 et. seq. The Illinois General Assembly’s Joint Commission on Administrative Rules (JCAR) will make Rules available in the Administrative Code section of its website.
The Amendments to the Illinois Notary Public Act and the Rules are a fundamental change to how notary publics will obtain or renew their commissions, perform notarizations, and keep records.
I. Obtaining or Renewing a Notary Public Commission
The starting point for any person wishes to become a notary public or renew their commission is determining the type of notarizations they would like to perform. Now Illinois has three options: (1) traditional in-person notarizations; (2) remote notarizations; and (3) electronic notarizations. Traditional notarizations are the in-person notarizations that notary publics have been doing for years. Remote notarizations are the process of notarizing documents with an ink stamp but using audio-video technology to view the document signing in real time. Electronic notarizations are the process of the notary public using an electronic signature and affixing an electronic stamp after viewing the signing in real time using audio-video technology. The type of notarizations that the notary public will perform will affect the application process to receive a commission. But in short, every applicant for a notary public commission must complete a course of study, obtain a bond, and complete the IL SOS’s application. (14 Ill. Admin. Code 176.100).
Course of Study
Beginning January 1, 2024, every person applying for a notary public commission must complete a 3-hour course of study before submitting their application. The IL SOS will post a list of approved course providers on their website. The course of study may be taken online or in person (14 Ill. Admin. Code 176.235(a)) and “must include, but not be limited to:
- Promoting respect for and encouraging the observance of the duties and requirements of a notary public under the Act;
- Identifying potential damages and economic losses that could result from notarial misconduct;
- Motivating continuing development of notarial competencies through education, including, but not limited to adherence to the Act; and
- Providing knowledge of the Act, [the Rules], and other laws related to or affecting notarial work”
176 Ill. Admin. Code 176.225(e).
The course of study must conclude with a 50-question final exam, and students must receive at least 85% on the exam to pass. If a student fails the exam 3 times, the student must retake the course.
Every notary public applicant must obtain a bond. The amount of bond varies based on the type of notarizations being performed. Notary publics performing traditional in-person notarizations are required to have a $5,000 bond. Notary publics performing remote notarization or electronic notarizations are required to have a $30,000 bond.
Those seeking a notary public commission must complete and submit an application to the IL SOS. The IL SOS will create the applications and make them on their website. For notary publics who will perform only traditional or remote notarizations, the application requirements may be found at 5 ILCS 312/2-102(a). The application requirements for electronic notary publics are described in 5 ILCS 312/2-102(b). Notably electronic notary publics must name the IL SOS-approved electronic notary platform they will use to perform notarizations upon being commissioned, and all electronic notary publics must also be commissioned as traditional notary publics.
II. Performing Notarial Acts
After a notary public is commissioned, they may begin performing notarizations, and Illinois now has three different ways to perform notarial acts. Each method is described below.
Traditional In-Person Notarial Acts
Traditional in-person notarial acts are unchanged from before the enactment of Public Act 102-0160, but the amendments to the Notary Public Act makes clear a notary public may refuse to perform a notarial act.
Remote Notarial Acts
Remote notarial acts are substantially similar to the Governor’s Executive Order 2020-14 (EO) issued in March 2020 at the beginning of the COVID-19 pandemic (and the subsequent legislation based on the executive order). Like the EO, the signer and the notary public must be located in Illinois at the time of the signing. 5 ILCS 312/6-102.5 Also the notarial certificate signed by the notary must specify the notarial act took place using communication technology. See 14 Ill. Admin. Code 176.730 for examples. But there are minor differences between the permanent remote notarization statute and the EO. For example, the signer is not required to initial every page of the document being notarized (but each page of the document must continue to be legibly shown on camera). The entire process for remote notarizations is described in 5 ILCS 312/6-102.5, and 14 Ill. Admin. Code 176.700 – 176.710.
Electronic Notarial Acts
Electronic Notarial Acts require the use of an electronic notary platform that has been approved by the IL SOS. Importantly, an electronic notary public is not liable for any failures of the electronic notary platform. 5 ILCS 312/6A-102
Like any notarial act, an electronic notarization begins with determining the identity of the signer. Fortunately, the electronic notary platform handles most of the work. First the signer must complete a dynamic knowledge-based assessment (DKBA). A DKBA is a test of information about the signer that pulls questions from public and private resources. This is followed by a credential analysis to confirm the validity of a government-issued photo identification. Then the notary public must personally view the same identification to ensure the photo matches the person signing the document. The entire process for verifying the identity of the signer, including information about the DKBA and credential analysis, is described in 14 Ill. Admin. Code 176.835.
After verifying the identity of the signer, the electronic notarization may proceed using the process described in 14 Ill. Admin. Code 176.860. Unlike remote notarial acts, only the notary public must be in Illinois at the time of the electronic notarization. 5 ILCS 312/3-105. The notarial certificate must specify the notarial act took place using an electronic notary platform. See 14 Ill. Admin. Code 176.865 for examples. After the notary public has signed the document and affixed the electronic notary seal, the document must be made tamper-evident so that evidence of any changes is displayed and the document must be capable of independent verification. 14 Ill. Admin. Code 176.810.
For anyone nervous about the acceptance of electronic notarizations or deciding whether to accept electronic notarizations, the Rules state, “An electronic notarial act will have the same force and effect as a notarial act performed in the physical presence of a notary public.” 14 Ill. Admin. Code 176.860.
Recording Notarial Acts
Both electronic notarial acts and remote notarial acts must be recorded. The notary public who performed a remote notarial act must maintain the recording for at least 3 years. 5 ILCS 312/6-102.5. The notary public has a duty to protect the recording and any personally identifiable information in the recording from unauthorized access. 14 Ill. Admin. Code 176.700.
For electronic notarizations, the electronic notarization platform records the notarization. The electronic notary must ensure the recording is maintained by the platform for at least 7 years. 14 Ill. Admin. Code 176.840 Both the platform and the notary public have a duty to protect the recording and any personally identifiable information from unauthorized access. 14 Ill. Admin Code 176.845.
The amendments to the Illinois Notary Public Act added a journal requirement for notary publics. The Rules state the journal must remain in the possession of the notary public upon leaving their employment, and the journal must be available for inspection by any person. Obviously, these requirements conflict with the Illinois Rules of Professional Conduct to maintain client confidentiality. For this reason, the IL SOS waived the journal requirement for attorneys and law firms if they maintain a copy of the notarized document:
(e) Notwithstanding any other subsection of this Part to the contrary, a notary employed by an attorney or law firm is not required to keep a journal of notarizations performed during of the notary’s employment if the attorney or law firm maintains a copy of the documents notarized. No attorney or law firm shall be required to violate attorney-client privilege by allowing or authorizing inspection of any notarizations that are recorded in a notary’s journal. Journals of notarizations performed solely within the course of a notary’s employment with an attorney or law firm is the property of the employing attorney or firm.
14 Ill. Admin. Code 176.900(f). For more information on the journal requirements for notary publics who are not attorneys or employed by law firms, see 14 Ill. Admin. Code 176.900 – 176.960.
As a practical matter, law firms should be cognizant of notarizing documents that are unrelated to the client’s matter. For example, a client represented by a law firm in a contract dispute might request a law firm’s employee notarize a beneficiary designation form for their IRA. Many firms would provide this service, but under Sec. 176.900(f), the law firm must maintain a copy of the document in the client’s file even though it may be unrelated to the client’s matter.
The Rules are not as daunting as they initially appear. Many sections are relevant only to course providers, remittance agents, and electronic notary platforms. They also include several sections on administrative procedures for complaints against notaries and penalties for failing to follow the Notary Public Act and its underlying Rules. While it will take time for notary publics to learn the Rules, they clarify the processes for notarial acts and provide clear examples of notarial certificates for different notarial acts. Most importantly, they expand access to notary publics by allowing electronic notarizations through apps on phones, tablets and computers.
About Ray Prather, J.D., CPA, CFF
A founding member of Prather Ebner Wilson, Ray has been practicing trust and estate law in Chicago for over 15 years. He has a wide range of experience in this area – from representing beneficiaries, executors and trustees in and out of the courtroom to advising donors, board members and non-profit organizations in disputes over charitable gifts. Ray represents trustees when tailored solutions are required to meet fiduciary duties because there are contentious family dynamics, conflicts in family businesses, or complexity in taxable estates. His knowledge in both accounting and tax law has helped beneficiaries and judges understand complicated estate planning and financial issues to ensure fair outcomes in contested trusts and estates. His unique background enables Ray to efficiently evaluate trust and estate accountings, financial statements, and tax returns without the added cost of consulting an outside expert.