Steven C. Drapekin

This alert was updated on December 2, 2020 to reflect Executive Order 20-19.

In response to the COVID-19 pandemic, the governor of Illinois ordered residents to stay home and all non-essential businesses and operations to cease pursuant to Executive Order 2020-10 , issued on March 20, 2020. The Director of the Missouri Department of Health and Senior Services issued a similar order on April 3, 2020 requiring that every individual adhere to strict social distancing guidelines. Some counties, including St. Louis City and St. Louis County, have ordered non-essential businesses to cease operations.

In the wake of these unprecedented restrictions, attorneys, legal professionals, and notaries are confronted with particular challenges with respect to notarizing legal documents. Traditionally, the signatory to a notarized document must appear personally before the notary. But due to the restrictions set forth in these stay-at-home orders, in-person notarization has become increasingly difficult. In response to these challenges, both Missouri and Illinois have temporarily permitted remote notarization.

Remote notarization permits a signatory to personally appear before the notary remotely at the time of the notarization using audio-visual technology via the internet. Remote notarization differs, however, from electronic notarization. Electronic notarization permits the notarization of documents in electronic form through e-signatures. That is, instead of notarizing a physical piece of paper through a wet signature, the notary is permitted to affix their electronic signature, seal, and certificate to the electronic document that contains the signatory’s signature. However, all other elements of a traditional, paper notarization typically apply to electronic notarization, including the requirement that the signatory personally appear before the notary (unless the electronic notarization is performed in conjunction with remote notarization, as discussed below). For instance, in Missouri, 15 CSR 30-110-020 authorizes a notary to use an electronic seal, signature, and certificate when performing a notarial act, but the signatory to the document still must personally appear before the notary.

This alert explains remote and electronic notarization in Missouri and Illinois pursuant to each state’s executive order, and discusses any special requirements with respect to estate planning and litigation documents.

Missouri Remote and Electronic Notarization Remote Notarization

On April 6, 2020, Missouri Governor Mike Parson issued Executive Order 20-12 , which was later extended via Executive Order 20-14 and 20-19 , temporarily permitting remote notarizations until March 31, 2021 in order to provide a secure and safe method by which to execute legal documents and reduce the spread of COVID-19. The Order temporarily suspends the requirement that the signatory personally appear before a notary public and allows notarization of documents utilizing audio-video technology, provided that certain conditions are satisfied. These conditions include the following:

If the signatory is not personally or otherwise known to the notary, the signatory must display a valid photo ID to the notary during the video conference; The signatory must affirmatively represent that he or she is physically situated in the State of Missouri, and the notary must be physically located in the State of Missouri and state in which county he or she is physically located for the jurisdiction on the notarial certificate; The video conference must be a live and interactive audio-visual communication between the signatory, notary, and any other necessary persons which allows for direct interaction and communication at the time of signing; The notary must record in their journal the exact time and software used to perform the notarial act, along with all other required information; and The document must contain a notarial certificate, a jurat or acknowledgement, which states that the signatory appeared remotely pursuant to Executive Order 20-14. The first requirement provides that both the signatory and notary public must be physically present in the state of Missouri in order to take advantage of remote notarization. Thus, out-of-state remote notarization is not permitted in Missouri.

The document may be notarized remotely in conformance with the above requirements either via wet signature by the notary on physical paper or through electronic notarization. For paper documents that the notary will sign via wet signature and affix a seal, a tangible or electronic copy of the signed document must be mailed or otherwise transmitted to the notary within five business days.

Any audio-visual technology software may be used for remote notarization, so long as the software allows for a live and interactive audio-visual communication.

Below is an example of a notary block to use for remote notarization, from the Missouri secretary of state’s website:

STATE OF MISSOURI )

) SS

COUNTY OF ST. LOUIS )

On this ___ day of April 2020, before me, the undersigned notary, appeared remotely pursuant to Executive Order 20-08 John Q Public JR proved to me through identification documents, and acknowledged to me that he signed the forgoing instrument voluntarily for its stated purpose and acknowledged that he executed the same for the purposes therein contained.

In witness whereof, I hereunto set my signature and official seal.

Electronic Notarization

Electronic notarization (the use of electronic signatures and seals) is permitted in Missouri pursuant to 15 CSR 30-110-020. The Missouri Executive Order allows for remote and electronic notarization to be performed in tandem, provided that three additional requirements are satisfied:

The notary public must be registered as an electronic notary public; The document must be signed electronically with software approved by the Missouri secretary of state; and The notary must affix their electronic notary seal to the electronic document. If the document is required to be presented in a paper medium, the Order provides that it shall satisfy the requirements of being an original document if the notary prints the document, affixes an attestation stating that it is a true and correct copy of the electronic document, states that the notarization was performed pursuant to Executive Order 20-14, and signs and affixes their rubber stamp notary seal.

A notary must submit an Application for Electronic Notary Public to the Missouri Secretary of State and list one or more approved software vendors in order to take advantage of electronic notarization. The Missouri Secretary of State’s office lists the following software vendors and applications approved for use with the electronic notary:

Pavaso NEXSYS NotaryCAM Additional software applications are expected to be added to the approved list, which can be found here .

Illinois Remote and Electronic Notarization Remote Notarization

On March 26, 2020, Illinois Governor JB Pritzker issued COVID-19 Executive Order 2020-14 temporarily permitting remote notarizations throughout the duration of the Gubernatorial Disaster Proclamation , which is set to expire on April 30, 2020. The Order temporarily suspends the requirement that the signatory and any necessary witnesses personally appear before a notary public and allows for notarization of documents utilizing two-way audio-visual communication technology, provided that certain guidance posted by the Illinois Secretary of State is followed. This guidance provides that the following conditions must be satisfied:

The notary and the signatory must be physically present in the State of Illinois at the time the remote notarization is performed; The notarization must occur by two-way, real time audio-video communication that allows for direct interaction between the notary and the signatory, and the notary must be able to properly examine the identification credentials of the signatory; The audio-video communication must be retained by the notary for a period of not less than three years; The signatory must show the notary every page of the document that will be signed, and the signatory should initial each page to ensure that the notarized document is complete; Electronic and remote notarization platforms must meet industry standards and each of the requirements of the Executive Order; If the notary is asked to certify to the appearance of witnesses to a document, the notary must be presented with a fax or electronic copy of the document signature pages showing witness signatures on the same date the document is signed by the signatory; All other requirements for notarization in Illinois must be satisfied, including the following: i) the document must contain the notary’s signature, seal, title and commission, and expiration date; ii) the document must contain other required information concerning the date and place of the remote notarization; and iii) the document must indicate that the person making the acknowledgement, oath, or affirmation appeared remotely. Under this guidance, any electronic or remote notarization platform may be utilized, so long as it meets industry standards and utilizes two-way audio-video communication. Additionally, both the signatory and notary public must be physically present in the state of Illinois in order to take advantage of remote notarization. Thus, out-of-state remote notarization is not permitted in Illinois. Although not explicitly stated, it is presumed that the signatory must transmit the signed document to the notary within 24 hours via overnight mail, fax, or electronic means, in accordance with the witness requirements outlined in the Illinois Estate Planning section below.

Electronic Notarization

Use of electronic signatures is specifically prohibited with respect to the creation or execution of a will or trust. 5 Ill. Comp. Stat. Ann. 175/5-120(c)(2). To date, electronic notarization is not expressly permitted in Illinois.

Remote Notarization for Estate Planning Documents in Missouri The Missouri Executive Order provides that any Missouri law requiring the physical presence of any testator, settlor, principal, witness, notary, or other person for the execution of any estate planning document is temporarily suspended or waived, provided that the necessary parties are present through a video conference as set forth in the Missouri Remote Notarization section above. It follows that any necessary witness that must sign the document must also be present in the State of Missouri at the time of signing.

Out of an abundance of caution, Lewis Rice encourages all clients who utilize remote witnessing and notarization during this time to reaffirm the signatures on their documents after the pandemic has passed. In the event such a document is challenged, reaffirmation would assist in ensuring its validity. Alternatively, if a client wishes to sign in-person, Lewis Rice has adopted a drive-through procedure that complies with the notarization and witnessing requirements.

Remote Notarization for Estate Planning Documents in Illinois The Illinois Executive Order provides that any act of witnessing required by Illinois law may also be completed remotely via two-way audio-video communication technology, absent an express prohibition in a document against signing in counterparts and provided that the following conditions are satisfied:

The witness and signatory must attest to being physically present in Illinois during the two-way video communication; The two-way audio-video communication technology must allow for direct and contemporaneous interaction between 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; Each page of the document being witnessed must be shown to the witness on the two-way audio-visual communication in a means clearly legible to the witness and initialed by the signatory in the presence of the witness; The witness must be able to observe the act of signing on the two-way audio-video communication; The signatory must transmit a legible copy of the entire signed document to the witness no later than a day after the document is signed, either via overnight mail, fax, or electronic means; The witness must sign the transmitted copy of the document and transmit the signed copy of the document back to the signatory within 24 hours of receipt, either via overnight mail, fax, or electronic means; If an original signed document is required, the witness may sign the original document as of the date of the original execution by the signatory, provided that the witness received the original signed document with the electronically witnessed copy within 30 days from the date of the remote witnessing. Remote Notarization Considerations for Litigation The Missouri and Illinois Executive Orders do not provide for any special requirements with respect to remote notarization in the litigation context. The Missouri Order authorizes “any notarial act” to be performed remotely, so long as the requirements set forth in the Missouri Remote Notarization section above are satisfied. Likewise, the Illinois Order authorizes any notarial act to be performed remotely, so long as the requirements set forth in the Illinois Remote Notarization section are satisfied. The Illinois Order defines a “notarial act” to include taking an acknowledgment and administering an oath or affirmation.

To stay abreast of the emerging legal issues raised by the coronavirus pandemic, Lewis Rice has formed a COVID-19 Task Force , which brings together subject matter authorities from various practice areas within the Firm who stand ready to assist our clients as they navigate these complex challenges. Our attorneys are closely monitoring these developments as they occur and will make regular updates to our COVID-19 Resource Center . If your business is unsure about any aspect of remote notarization in Missouri or Illinois, please reach out to one of the authors above or another member of the Task Force.