Danger Will Robinson: The New Frontier of Remote Online Notarization and Electronic Wills.

• Date: 01 November 2019
• Author: Butters, Sarah S.

On June 7, 2019, to the delight of some practitioners and the horror of others, the future of remote notarization and electronic wills became a reality in Florida. With the passage of House Bill 409 into law as Laws of Florida Ch. 2019-71, titled "Notaries Public--Electronic Transactions" (the act), Florida has taken a great step forward into the world of technological advancements by allowing notaries to perform notarial acts remotely using audio-video communication technology and enabling the execution of electronic wills. The act becomes effective on January 1, 2020 (except the provisions relating to electronic wills, (1) which become effective on July 1, 2020), giving notaries and lawyers a short window of time to familiarize themselves with the new legislation and prepare for a new technological age of remote notarization and electronic wills.

The act does three things. First, it adds a new Part II to F.S. Ch. 117, which governs the online notarization of electronic documents. It also amends various other provisions of the Florida Statutes concerning transactional documents that are required to be notarized or witnessed to incorporate references to remote notarization. Lastly, the act includes provisions recognizing and regulating electronic wills and other estate planning documents.

Remote Online Notarization

The act is heavy on the nuts and bolts of becoming an online notary public and how to accomplish a remote notarial act, including details on the recording requirement, electronic journaling, witnessing electronic documents, and security and storage of electronic documents by qualified custodians.

At the outset, it should be noted that electronic documents are not new to Florida. In 2000, the legislature adopted the Uniform Electronic Transaction Act, (2) and in 2007, it adopted the Uniform Real Property Electronic Recording Act. (3) The act took electronic documents to another level by making it possible for documents to be notarized online when the notary and the principal are in different physical locations and are connected only via audio-video communication technology.

The legislation refers to the person whose signature the online notary is acknowledging electronically as the principal (distinguished from the principal who signs a power of attorney under Ch. 709). (4) The person who performs a remote notarial act and is registered with the Department of State to do so is referred to as the "online notary public." (5) The acronym RON stands for "remote online notary," and the software companies that offer the necessary technology are called RON service providers. (6) The statute requires online notarizations to occur using "audio-visual communication technology," meaning technology in compliance with applicable law that enables real-time, two-way communication using electronic means in which participants can see, hear, and communicate with one another. (7) F.S. [section] 117.225 provides detailed instructions setting the requirements for registration as an online notary public in Florida, including requiring online notary publics to be both bonded and insured. (8)

An online notary public is subject to the same rules and regulations as a traditional notary public (plus those applicable only to online notarizations) and may perform any of the functions of a traditional notary, other than solemnizing a marriage ceremony. (9) A Florida online notary public located in the state can perform a notarial act no matter where the principal or any witnesses are physically found (and a commissioner of deeds may perform an online notarization while outside Florida), and Florida law will govern the validity of the online notarization. (10) An online notary public may only charge up to $25 per online notarization (11) and up to $20 for making and delivering an electronic copy of an electronic record. (12) The act requires online notary publics to keep a secure electronic journal of the online notarizations they perform, which must include certain information described in F.S. [section] 117.245. (13) The online notary public is required to retain an uninterrupted and unedited copy of the recording of the audio-visual communication, which must include, among other things, a declaration by the principal that his or her signature is being made knowingly and voluntarily. (14)

Before performing an online notarization, the online notary public is required to confirm the identity of the principal by either personal knowledge or complying with each of the following: 1) remote presentation of a government-issued identification credential by the principal; 2) credential analysis of each government-issued identification credential; and 3) identity proofing of each principal in the form of knowledge-based authentication or another method of identity proofing. (15) It is anticipated that this process will include written questions that the principal will answer through written or click-through questions, similar to those used when applying for a credit card. Until the Department of State adopts specific standards for identity proofing, F.S. [section] 117.295(3) sets forth the threshold requirements for identity proofing. These include presenting the principal with five or more questions with a minimum of five possible answer choices per question, drawn from third-party providers of public and proprietary data sources and identifiable to the principal's Social Security number or similar identifying information, and under a twominute time constraint per question, the principal must answer at least 80% of the questions correctly with only one chance to retake the quiz. (16) Witnesses are required to go through the same authentication procedures as a principal. (17)

Once authenticated, the principal, witnesses (if any) and the online notary are connected via audio-visual communication technology and the recording must begin. The recording must include all of the following: appearance by the principal and any witness before the online notary public; confirmation of the identity of the principal and any witness; a general description or identification of the records to be signed; a recitation at the commencement of the recording by the online notary public of information sufficient to identify the notarial act; a...