Chapter 140

140.145(1)(a)1. 1. The device or process allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound.

140.145(1)(a)2. 2. When necessary and consistent with other applicable law, the device or process facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.

140.145(1)(b) (b) “Foreign state” means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe.

140.145(1)(c) (c) “Identity proofing” means a process or service by which a 3rd person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.

140.145(1)(d) (d) “Outside the United States” means a location outside the geographic boundaries of the United States, Puerto Rico, the U.S. Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.

140.145(1)(e) (e) “Remotely located individual” means an individual who is not in the physical presence of the notary public who performs a notarial act under sub. (3).

140.145(1m) (1m) For purposes of determining the jurisdiction in which a notarial act is performed for a remotely located individual, the location of the notary public shall be determinative.

140.145(2) (2) A remotely located individual may comply with s. 140.06 by using communication technology to appear before a notary public.

140.145(3) (3) Except for the administration of an oath before a witness at a deposition, a notary public located in this state may perform a notarial act using communication technology for a remotely located individual if all of the following apply:

140.145(3)(a) (a) The notary public has any of the following:

140.145(3)(a)1. 1. Personal knowledge under s. 140.07 (1) of the identity of the individual.

140.145(3)(a)2. 2. Satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public under s. 140.07 (2) or this section.

140.145(3)(a)3. 3. Obtained satisfactory evidence of the identity of the remotely located individual by using at least 2 different types of identity proofing.

140.145(3)(b) (b) The notary public is able reasonably to confirm that a record before the notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature.

140.145(3)(c) (c) The notary public, or a person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act.

140.145(3)(d) (d) For a remotely located individual located outside the United States, all of the following are satisfied:

140.145(3)(d)1. 1. The record satisfies any of the following requirements:

140.145(3)(d)1.a. a. The record is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States.

140.145(3)(d)1.b. b. The record involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States.

140.145(3)(d)2. 2. The act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.

140.145(4) (4) If a notarial act is performed under this section, the certificate of notarial act required by s. 140.15 and the short form certificate provided in s. 140.16 must indicate that the notarial act was performed using communication technology.

140.145(5) (5) A short form certificate provided in s. 140.16 for a notarial act subject to this section is sufficient if any of the following applies:

140.145(5)(a) (a) The certificate complies with rules promulgated under sub. (8) (a).

140.145(5)(b) (b) The certificate is in the form provided in s. 140.16 and contains a statement substantially as follows: “This notarial act involved the use of communication technology.”

140.145(6) (6) A notary public, a guardian, conservator, or agent of a notary public, or a personal representative of a deceased notary public shall retain the audio-visual recording created under sub. (3) (c) or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by rule promulgated under sub. (8) (d), the recording must be retained for a period of at least 7 years after the recording is made.

140.145(7) (7) Before a notary public performs the notary public’s initial notarial act under this section, the notary public must notify the department that the notary public will be performing notarial acts with respect to remotely located individuals and identify the technologies the notary public intends to use. If the department has established standards under sub. (8) and s. 140.27 for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards.

140.145(8) (8) In addition to promulgating rules under s. 140.27, the department shall promulgate rules under this section regarding performance of a notarial act. The rules may do any of the following:

140.145(8)(a) (a) Prescribe the means of performing a notarial act involving a remotely located individual using communication technology.

140.145(8)(b) (b) Establish standards for communication technology and identity proofing.

140.145(8)(c) (c) Establish requirements, including registration, or procedures to approve providers of communication technology and the process of identity proofing.

140.145(8)(d) (d) Establish standards and a period for the retention of an audio-visual recording created under sub. (3) (c).

140.145(8)(e) (e) Establish any other requirement, not inconsistent with this chapter, relating to the performance of a notarial act for a remotely located individual.

140.145(9) (9) Before promulgating, amending, or repealing a rule governing performance of a notarial act with respect to a remotely located individual, the department must consider all of the following:

140.145(9)(a) (a) The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the recommendations of the National Association of Secretaries of State or any successor organization.

140.145(9)(b) (b) Standards, practices, and customs of other jurisdictions that have laws substantially similar to this section.

140.145(9)(c) (c) The views of governmental officials and entities and other interested persons.

140.145(10) (10) This section does not apply to a transaction to the extent it is governed by any of the following:

140.145(10)(a) (a) Any law governing the creation and execution of wills, codicils, or testamentary trusts.

140.145(10)(b) (b) Any law governing the creation and execution of living trusts or trust amendments for personal use, not including a transaction, as defined in s. 137.11 (15).

140.145(10)(c) (c) Any law governing the creation and execution of powers of attorney, not including any of the following:

140.145(10)(c)1. 1. A transaction, as defined in s. 137.11 (15).

140.145(10)(c)2. 2. A limited financial power of attorney for a real estate transaction.

140.145(10)(d) (d) Any law governing the creation and execution of marital property agreements.

140.145(10)(e) (e) Any law governing the creation and execution of powers of attorney for health care, declarations to physicians (living wills), and authorizations for use and disclosure of protected health care information.

140.145(11) (11) 

140.145(11)(a) (a) The remote notary council shall adopt standards to implement this section. The department shall promulgate by rule the standards adopted, amended, or repealed by the council under this paragraph.

140.145(11)(b) (b) To keep the standards and practices of notaries public in this state in harmony with the standards and practices of notaries public in other jurisdictions that enact substantially this section and to keep the technology used by notaries public in this state compatible with technology used by notaries public in other jurisdictions that enact substantially this section, the remote notary council, so far as is consistent with the purposes, policies, and provisions of this section, in adopting, amending, and repealing standards shall consider all of the following:

140.145(11)(b)1. 1. Standards and practices of other jurisdictions.

140.145(11)(b)2. 2. The most recent standards promulgated by national standard-setting bodies.

140.145(11)(b)3. 3. The views of interested persons and governmental officials and entities.

140.145(11)(b)4. 4. The need for security protection to ensure that notarial acts for remotely located individuals are accurate, authentic, adequately preserved, and resistant to tampering.

140.145(11)(c) (c) The remote notary council shall review the statutes related to notarial acts for remotely located individuals and shall recommend to the legislature any changes in the statutes that the council finds necessary or advisable.

140.145 History History: 2019 a. 125; 2023 a. 129.

140.147 140.147 Notarial act performed for remote execution of estate planning documents.

140.147(1) (1) In this section:

140.147(1)(a) (a) “Estate planning document” means any of the following:

140.147(1)(a)1. 1. A will or a codicil.

140.147(1)(a)2. 2. A declaration of trust or other document creating a trust as provided in s. 701.0401 or an amendment to a declaration of trust or other document creating a trust.

140.147(1)(a)3. 3. A certification of trust as provided in s. 701.1013.

140.147(1)(a)4. 4. A power of attorney for finances and property.

140.147(1)(a)5. 5. A power of attorney for health care.

140.147(1)(a)6. 6. A marital property agreement or an amendment to a marital property agreement.

140.147(1)(a)7. 7. A written instrument evidencing a nonprobate transfer pursuant to s. 705.10, 705.15, 705.18, or 766.58 (3) (f).

140.147(1)(a)8. 8. A declaration to health care professionals.

140.147(1)(a)9. 9. An authorization for final disposition.

140.147(1)(a)10. 10. An authorization for use and disclosure of protected health information.

140.147(1)(a)11. 11. An instrument of disclaimer under s. 854.13.

140.147(1)(a)12. 12. An instrument exercising a power of appointment under ch. 702.

140.147(1)(b) (b) “Remotely located individual” means an individual who is not in the physical presence of the notary public who performs the notarial act pursuant to this section.

140.147(1)(c) (c) “Sign” means, with respect to a remotely located individual, the execution of an estate planning document that is required or intended to be executed in the presence of a notary public.

140.147(2) (2) 

140.147(2)(a) (a) An estate planning document may not be denied legal effect or enforceability relating to a transaction solely because a notarial act was performed in compliance with this section.

140.147(2)(b) (b) Except as provided in par. (a), this section shall not apply to, or impact the legal effect or enforceability of, any electronic records or electronic signatures governed by ch. 137.

140.147(3) (3) For purposes of signing an estate planning document, a remotely located individual may comply with s. 140.06 by appearing before a notary public via 2-way, real-time audiovisual communication technology if all of the following requirements are satisfied:

140.147(3)(a) (a) The signing is supervised by an attorney in good standing licensed to practice law in this state. The supervising attorney may serve as the notary public.

140.147(3)(b) (b) The remotely located individual attests to being physically located in this state during the 2-way, real-time audiovisual communication.

140.147(3)(c) (c) The notary public attests to being physically located in this state during the 2-way, real-time audiovisual communication.

140.147(3)(d) (d) The remotely located individual positively confirms the remotely located individual’s identity. If the remotely located individual is not personally known to the notary public and the supervising attorney, the remotely located individual shall provide satisfactory evidence of the remotely located individual’s identity as provided in s. 140.07.

140.147(3)(e) (e) The remotely located individual identifies anyone else present in the same physical location as the remotely located individual. If possible, the remotely located individual shall make a visual sweep of the remotely located individual’s physical surroundings so that the notary public and the supervising attorney can confirm the presence of any other persons.

140.147(3)(f) (f) The remotely located individual displays the estate planning document, confirms the total number of pages and the page number on which the remotely located individual’s signature is to be affixed, and declares to the notary public and the supervising attorney that the remotely located individual is 18 years of age or older, that the document is the remotely located individual’s estate planning document, and that the document is being executed as a voluntary act.

140.147(3)(g) (g) The remotely located individual, or another individual 18 years of age or older authorized to sign on behalf of the remotely located individual at the express direction and in the physical presence of the remotely located individual, signs the estate planning document in a manner that allows the notary public and the supervising attorney to see the signing. If the estate planning document is signed by someone on behalf of the remotely located individual, the signing shall comply with s. 140.09.

140.147(3)(h) (h) The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the remotely located individual, the notary public, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time.

140.147(3)(i) (i) The estate planning document indicates that it is being executed pursuant to this section.

140.147(3)(j) (j) One of the following occurs:

140.147(3)(j)1. 1. The remotely located individual, or another person at the direction of the remotely located individual, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original estate planning document to the supervising attorney within a reasonable time after the signing. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original estate planning document to the notary public within a reasonable time. The notary public then performs the intended notarial act and forwards the entire original estate planning document by personal delivery or U.S. mail or commercial courier service to the supervising attorney within a reasonable time.

140.147(3)(j)2. 2. The remotely located individual, or another person at the direction of the remotely located individual, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original estate planning document to the supervising attorney within a reasonable time after the signing and transmits by facsimile or electronic means a legible copy of the entire signed estate planning document directly to the notary public within a reasonable time after the signing. The notary public then performs the intended notarial act and personally delivers or transmits by U.S. mail or commercial courier service the entire signed copy of the estate planning document to the supervising attorney within a reasonable time. The signed original and signed copy together shall constitute one original document unless the supervising attorney, within a reasonable time after receiving the signed original and signed copy, compiles the signed original and signed copy into one document by attaching the page or pages containing the notarial act to the original signed by or on behalf of the remotely located individual, in which case the compiled document shall constitute the original.

140.147(3)(j)3. 3. The remotely located individual, or another person at the express direction of the remotely located individual, and the notary public sign identical copies of the original estate planning document. The remotely located individual, or another person at the direction of the remotely located individual, and the notary public personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after the signing and performance of the notarial act. All of the originals together shall constitute one document unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the page or pages containing the notarial act to the original signed by or on behalf of the remotely located individual, in which case the compiled document shall constitute the original.

140.147(3)(k) (k) The supervising attorney completes and attaches to the estate planning document an affidavit of compliance that contains the following information:

140.147(3)(k)1. 1. The name and residential address of the remotely located individual.