IL Virtual Witness Requirements - COVID-19 Alert
March 27, 2020
On March 26, 2020, Illinois Governor Pritzker issued Executive Order 2020-14 (link to PDF included below).
In response to the risk of in-person contact necessary in the notarization and witnessing of documents, the Executive Order allows notaries and witnesses to carry out their respective duties through video-conferencing. The Executive Order includes stringent requirements on the principal signer, the witnesses, and the notary.
Illinois law requires significant notarization and witnessing of estate planning documents. For example, a will requires two disinterested witnesses, but does not require a notary. A power of attorney for property, however, requires one disinterested witness and a notary. Previously, the witnesses and notary had to be in the physical presence of the document signatory, and of each other. This Executive Order temporarily removes the physical-presence requirement.
To validly execute documents remotely, the following requirements must be met:
- During the video-conference, the signatory must attest that he or she is physically present in the State of Illinois;
- If a notary is required, the notary must be physically present in the State;
- Also during the video conference, the witnesses must attest that they too are physically present in the State;
- The audio-video technology must allow for direct interaction between the signer, the witnesses, and the notary;
- The video must be recorded and held by the signatory or the signatory’s designee for three years from the date of signing;
- The signatory must declare during the conference each and every document that they sign;
- Every page of every document signed during the video conference must be shown to each witness by the signatory, and sufficiently close to the camera so that the witness can verify the document;
- The signatory must initial every page of every document;
- Within 24 hours of signing, the signatory must deliver a legible copy of each signed document to each witness by email, fax, or “other electronic means”;
- Upon receipt, the witness must sign the transmitted copy as a witness and transmit the signed copy back to the signatory by fax, email, or other electronic means within 24 hours of receipt. The witness may date the document as of the date of the principal’s signing (the prior date).
Although the rules are stringent, it is our understanding that this hopefully will allow clients to continue to execute their estate planning documents in accordance with Illinois law. As this is clarified, we will update as necessary.
There remains concern that an executive order cannot override a duly enacted statute. However, the Order’s intent is clear. The Illinois legislature may statutorily ratify the Executive Order when it returns to session to remove any ambiguity.
The Illinois Secretary of State has issued notarial rules for virtual notarization, which can be found here.
We will continue to provide the most current information available and remain available to answer your questions on these and other matters. For further information, please contact:
Donna Hartl (312) 696-2035,
Barry Siegal (312) 696-1699,
Nancy Franks-Straus (312) 696-1368,
Jonathan Morton (312) 696-1018, or
Katherine Oswald (312) 696-1019