Can you notarize an electronic signature?

The COVID-19 pandemic forced businesses to adopt a digital pathway for most of their works, which brought in the need for the electronic signing of documents. This raised a question about the legal status and acceptability of an electronic signature.

Although most states have laws pertaining to electronic signatures, three states, i.e., Illinois, New York, and Missouri, still do not practice notarization of an electronic signature.

So, if you are looking for an answer to “can you notarize an electronic signature?” This post is for you. We will cover:

1. What is an electronic signature?

An electronic signature or e-signature is a legally binding and efficient way to get or grant approval to any electronic document. They are secure, verifiable and have replaced handwritten signatures in virtually all industries and sectors, especially during the pandemic.

An e-signature can speed up processes by allowing recipients to sign documents and exchange them online via email, fax, etc. Additionally, it helps you save money and time by avoiding the hassle of courier services.

Some of the common domains that use electronic signatures are:

Sales deeds
Administrative tasks and approvals
Human resources documents e-signed by employees, including employment contracts
Financial services and sectors, including banks and financial institutions accepting electronically signed application forms, approvals, and consents

Electronic signature under federal law

E-SIGN is a national and global commerce federal law practiced in all states that permits the usage of electronic signatures for most commercial transactions affecting foreign and interstate commerce.

Under this law, an electronic signature can be an electronic symbol, process, or sound. These can have a legal association with a record or contract and be adopted or executed by an individual with the intent of signing a document.

Under E-SIGN, a contract, a signature, or any other record relating to such commercial transactions must be able to enjoy the legal and valid effect. However, consumer transactions require different disclosures and standards for consumer consent.

E-SIGN comes with specific exemptions from its enforceability and validity provisions, including:

Statutes governing wills
Certain articles under the “Uniform Commercial Code”
Court orders
Family law
Records pertaining to specific notices such as notice of acceleration or declaration under primary residence’s rental agreements

E-SIGN preempts laws in all states on electronic signatures and records unless the state is already practicing a version of UETA.

Electronic signature under UETA

The Uniform Law Commissioners promulgated the UETA in 1999. Currently, all states except Washington, Illinois, and New York have adopted UETA. However, each state has its own laws addressing electronic signatures.

47 states in the country, plus the Virgin Islands, Puerto Rico, and the District of Columbia, adopted UETA Section 7. The UETA provides full legal recognition to electronic signatures as states:

An electronic signature may not face denial to enforceability or legal effect just because of its electronic format – UETA § 7(a), Cal. Civ. § 1633.7(a), Del. Code Ann. tit. 6 § 12A-107(a)
If the law requires a document with a signature, parties can use an electronic signature, and it will satisfy the law – UETA § 7(d), Cal. Civ. § 1633.7(d), Del. Code Ann. tit. 6 § 12A-107(d)

The UETA is applicable to transactions between two parties that agree to conduct electronic transactions based on context and other circumstances, including the conduct of the parties. That said, UETA has the same definition of an electronic signature as described by E-SIGN.

Just like E-SIGN, UETA also does not apply to legal records such as the creation and execution of codicils, wills, testamentary trusts, and specific provisions of the “Uniform Commercial Code.”

Under the E-SIGN and UETA, if a signature needs notarization, this will require the electronic signature of the authorized person to sign the document along with other requirements electronically.

2. Where can you notarize an electronic signature?

You can get an electronic signature notarized in all states by the aforementioned laws. Currently, there are 34 states that have enacted some form of permanent remote online notarization (RON) law.

Difference between electronic notarization and Remote Online Notarization (RON)

Electronic notarization refers to the notarization of electronic documents with an e-signature, where, document signers, as well as a notary sign the document in front of a witness via an e-signature. That said, the signer of the document has to present themselves before the notary for the notarization process physically.

In the case of Remote Online Notarization (RON), the notary, as well as the document signer, appears before each other through an audio-visual technology connected through the internet. This exempts them from being physically present in the same place.

The good thing is a document notarized in the state with RON is also effective in states that do not allow RON. States of California, Illinois, and Missouri do not enact the RON laws; however, the governor of Illinois issued an executive order enabling remote notarization only during the COVID-19 pandemic.

However, a RON in Illinois is only effective if:

notary performs a two-way audio-visual technology
the notary has a physical premise within Illinois while performing the notarization
The transaction abides by the guidance set in place by Illinois’ secretary of state

3. Requirements for an electronic notarization

While the RON law allows electronic notarization of an electronic signature, it does not affect the legal requirements set in place by the notary law. Both applicants and the notary will follow the same rules to notarize an electronically signed document as they would for a paper document.

The electronic notarization of the electronic signature includes:

Real estate deeds
Real estate transactions
Mortgages
Power of attorney
Affidavits
Contractual agreements

Remember that the Federal legislature for electronic signature does not allow notarization of Documents Such As Adoption Notices, Divorce Decrees, and Wills.

4. How to apply for notarization of an electronic signature?

In the electronic format, a bundle of papers will appear as a single document on a computer screen of an attorney’s office. All the parties must still physically present themselves in front of the notary officer. However, they can still sign the document using the digital pad. This is similar to when you sign for a courier package on their digital device.

Each party can see their signature appear on the e-document on the notary’s computer screen. By the end of closing, when all parties have signed the document correctly, the notary will add an electronic signature to verify the validity of the document.

The notary then sends the documents to their desired destinations. Additionally, each party has the option to get a digital copy of the closing documents. This allows a great level of convenience to all parties at remote locations to process their electronically signed documents for notarization instead of paper documents.

E-signing documents

The signing method is an electronic signature added to the digital document by relevant parties. At the time of notarization, all the signers, witnesses, as well as the notary must be present via two-way audio-visual technology.

All of the parties can sign the document electronically by the following inputs:

Typing in their initials
Signing their original and legal signatures using a stylus on a digital pad
Attaching a graphic/digital file that contains a drawing or a picture of their legal signature.
They can also use a software application that allows them to sign a document electronically.

The notary officer will be signing as a witness. The process stays the same, whether you apply for the notarization of electronic signature in person or online. The notary also has the authority to sign the document as one of the witnesses. But this is only applicable when a witness signature does not require notarization and if the notary mentions in the notarial certificate whose signature has been notarized.

If the notary does not provide any specific notation, the court of law will assume that the notarization will be applicable to all signatures on the document.

5. Can you notarize an electronic signature in Florida?

Yes, you can notarize an electronic signature in Florida. The state of Florida revised the notary public laws that came into effect on January 1, 2020. This revision now counts an interactive audio-video conference call the same as “personal/in-person appearance.” However, it has to be only by an approved vendor, e-Notary Platforms. So, in short, yes, Floridians can verify an electronic signature for all legal purposes.

The remote online notarization (RON) in Florida allows people, law firms, banks, and other businesses to contact a notary online, connect with them, sign a document electronically and have it notarized. Only authorized online notaries in the state of Florida can now also notarize e-documents for people anywhere in the country. However, all the parties must have an audio-video connection to present themselves in front of the notary.

The notary records the entire video chat in real-time, including all parties’ identity verification process and the document’s notarization process. The record remains in the archive of the notary for future reference.

The notary and all other parties sign the document electronically/digitally, and the notary then stamps it digitally. In the state of Florida, the notary’s journal for RON is 100% digital.

6. Can you notarize an electronic signature in Illinois?

Illinois does not allow electronic signature notarization as of yet. However, the governor of the state passed an executive order that helps remote online notarization of all documents. The condition is that as long as all the parties involved have a two-way audio-visual communication technology to appear in front of each other on a computer screen, the notarization is valid.

That said, here are the seven steps on how can you notarize an electronic signature in Illinois:

The signatory and witness must attest to confirm their physical presence in Illinois during two-way audio-visual communication.
The two-way audio-video session must allow direct and real-time interaction and communication between both signatories and witnesses by sound and sight.
The signatory is under obligation to record and store every two-way audio-visual communication for at least three years from its date of signing.
The witness must be able to see each page of a document way audio/video communication. Upon confirmation of the witness, the signatory can go ahead and sign the document for notarization.
The signatory has to transmit a legible copy of the signed document directly to the witness within the next 24 hours via fax, overnight mail, or any other digital/electronic means.
Upon receiving the transmitted copy, the witness must sign it and send it back to the signatory within 24 hours of receiving the document. The witness can again use fax, overnight mail, or any other electronic medium.
In case there is a requirement to sign the original document, the witness can sign the original documentation of the original execution date by the signatory. However, this is only possible if the witness receives the originally signed document along with a copy electronically witnessed. The witness has to receive these two documents within 30 days of witnessing the notarization remotely.

That said, you must still remember that the state of Illinois prohibits notarization of electronic signatures on legal documents such as creation and execution of a trust or will 5 Ill. Comp. Stat. Ann. 175/5-120(c)(2).

7. Can you notarize an electronic signature in New York?

According to updated guidelines issued by New York’s Secretary of State, the state allows the notarization of electronically signed documents. Thanks to the “New York Electronic Signatures and Records Act.” However, it requires the notary to witness the electronic signature.

The state of New York basically issued Executive Order # 202.7. This order states that any notarization that is legally applicable and eligible under the New York State’s law is now eligible to be notarized using audio-video communication technology. However, all parties meet specific conditions.

8. Notarize an electronic signature online with PandaDoc Notary

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