5 ILCS 312/ Illinois Notary Public Act.

(5 ILCS 312/Art. VI heading) ARTICLE VI NOTARIAL ACTS AND FORMS

(5 ILCS 312/6-101) (from Ch. 102, par. 206-101)

Sec. 6-101. Definitions.

(a) "Notarial act" means any act that a notary public of this State is authorized to perform and includes taking an acknowledgment, administering an oath or affirmation, taking a verification upon oath or affirmation, and witnessing or attesting a signature.

(b) "Acknowledgment" means a declaration by a person that the person has executed an instrument for the purposes stated therein and, if the instrument is executed in a representative capacity, that the person signed the instrument with proper authority and executed it as the act of the person or entity represented and identified therein.

(c) "Verification upon oath or affirmation" means a declaration that a statement is true made by a person upon oath or affirmation.

(d) "In a representative capacity" means:

(1) for and on behalf of a corporation, partnership, trust, or other entity, as an authorized officer, agent, partner, trustee, or other representative;

(2) as a public officer, personal representative, guardian, or other representative, in the capacity recited in the instrument;

(3) as an attorney in fact for a principal; or

(4) in any other capacity as an authorized representative of another.

(Source: P.A. 84-322.)

(5 ILCS 312/6-102) (from Ch. 102, par. 206-102)

Sec. 6-102. Notarial acts.

(a) In taking an acknowledgment, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the notary and making the acknowledgment is the person whose true signature is on the instrument.

(b) In taking a verification upon oath or affirmation, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the notary and making the verification is the person whose true signature is on the statement verified.

(c) In witnessing or attesting a signature, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the notary and named therein.

(d) A notary public has satisfactory evidence that a person is the person whose true signature is on a document if that person:

(1) is personally known to the notary;

(2) is identified upon the oath or affirmation of a credible witness personally known to the notary; or

(3) is identified on the basis of identification documents. Identification documents are documents that are valid at the time of the notarial act, issued by a state agency, federal government agency, or consulate, and bearing the photographic image of the individual's face and signature of the individual.

(e) A notary public or electronic notary public shall have no obligation to perform any notarial or electronic notarial act, and may refuse to perform a notarial or electronic notarial act without further explanation.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6-102.5)

Sec. 6-102.5. Remote notarial acts.

(a) Any commissioned notary public may perform any notarial act described under Section 6-102 remotely, after first determining, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the notary and named therein. A notary public has satisfactory evidence that a person is the person whose true signature is on a document if that person:

(1) is personally known to the notary;

(2) is identified upon the oath or affirmation of a credible witness personally known to the notary; or

(3) is identified on the basis of identification documents. Identification documents are documents that are (i) valid at the time of the notarial act, (ii) issued by a State agency, federal government agency, or consulate, and (iii) bearing the photographic image of the individual's face and signature of the individual.

(b) A remote notarial action must be performed in accordance with the following audio-video communication requirements:

(1) Two-way audio-video communication technology must allow for remotely located notaries and principals to engage in direct, contemporaneous interaction between the individual signing the document (signatory) and the witness by sight and sound.

(2) 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 3 years.

(3) The signatory must attest to being physically located in Illinois during the two-way audio-video communication.

(4) The signatory must affirmatively state on the two-way audio-video communication what document the signatory is signing.

(5) Each page of the document being witnessed must be shown to the witness on the two-way audio-video communication technology in a means clearly legible to the witness.

(6) The act of signing must be captured sufficiently up close on the two-way audio-video communication for the witness to observe.

(c) Application of the notary's seal and signature:

(1) The signatory must transmit by overnight mail, fax, or electronic means a legible copy of the entire signed document directly to the notary no later than the day after the document is signed.

(2) The notary must sign the transmitted copy of the document as a witness and transmit the signed copy of the document back to the signatory via overnight mail, fax, or electronic means within 24 hours after receipt.

(3) If necessary, the notary may sign the original signed document as of the date of the original execution by the signatory provided that the witness receives the original signed document together with the electronically witnessed copy within 30 days after the date of the remote notarization.

(d) The Secretary of State shall adopt administrative rules to implement this Section.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6-103) (from Ch. 102, par. 206-103)

Sec. 6-103. Certificate of notarial acts.

(a) A notarial act must be evidenced by a certificate signed and dated by the notary public. The certificate must include identification of the jurisdiction in which the notarial act is performed and the official seal of office.

(b) A certificate of a notarial act is sufficient if it meets the requirements of subsection (a) and it:

(1) is in the short form set forth in Section 6-105;

(2) is in a form otherwise prescribed by the law of this State; or

(3) sets forth the actions of the notary public and those are sufficient to meet the requirements of the designated notarial act.

(c) At the time of a notarial act, a notary public shall officially sign every notary certificate and affix the rubber stamp seal clearly and legibly using black ink, so that it is capable of photographic reproduction. The illegibility of any of the information required under this Section does not affect the validity of a transaction.

(Source: P.A. 100-81, eff. 1-1-18.)

(5 ILCS 312/6-104) (from Ch. 102, par. 206-104)

Sec. 6-104. Acts prohibited.

(a) A notary public shall not use any name or initial in signing certificates other than that by which the notary was commissioned.

(b) A notary public shall not acknowledge any instrument in which the notary's name appears as a party to the transaction.

(c) A notary public shall not affix his signature to a blank form of affidavit or certificate of acknowledgment.

(d) A notary public shall not take the acknowledgment of or administer an oath to any person whom the notary actually knows to have been adjudged mentally ill by a court of competent jurisdiction and who has not been restored to mental health as a matter of record.

(e) A notary public shall not take the acknowledgment of any person who is blind until the notary has read the instrument to such person.

(f) A notary public shall not take the acknowledgment of any person who does not speak or understand the English language, unless the nature and effect of the instrument to be notarized is translated into a language which the person does understand.

(g) A notary public shall not change anything in a written instrument after it has been signed by anyone.

(h) No notary public shall be authorized to prepare any legal instrument, or fill in the blanks of an instrument, other than a notary certificate; however, this prohibition shall not prohibit an attorney, who is also a notary public, from performing notarial acts for any document prepared by that attorney.

(i) If a notary public accepts or receives any money from any one to whom an oath has been administered or on behalf of whom an acknowledgment has been taken for the purpose of transmitting or forwarding such money to another and willfully fails to transmit or forward such money promptly, the notary is personally liable for any loss sustained because of such failure. The person or persons damaged by such failure may bring an action to recover damages, together with interest and reasonable attorney fees, against such notary public or his bondsmen.

(j) A notary public shall not perform any notarial act when his or her commission is suspended or revoked, nor shall he or she fail to comply with any term of suspension which may be imposed for violation of this Section.

(k) No notary public shall be authorized to explain, certify, or verify the contents of any document; however, this prohibition shall not prohibit an attorney, who is also a notary public, from performing notarial acts for any document prepared by that attorney.

(l) A notary public shall not represent himself or herself as an electronic notary public if the person has not been commissioned as an electronic notary public by the Secretary of State.

(m) No person shall knowingly create, manufacture, or distribute software or hardware for the purpose of allowing a person to act as an electronic notary public without being commissioned in accordance with this Act. A violation of this subsection (m) is a Class A misdemeanor.

(n) No person shall wrongfully obtain, conceal, damage, or destroy the technology or device used to create the electronic signature or seal of an electronic notary public. A violation of this subsection (n) is a Class A misdemeanor.

(o) A notary public shall not sell, rent, transfer, or otherwise make available to a third party, other than the electronic notarization platform, the contents of the notarial journal, audio-video recordings, or any other record associated with any notarial act, including personally identifiable information, except when required by law, law enforcement, the Secretary of State, or a court order. Upon written request of a third party, which request must include the name of the parties, the type of document, and the month and year in which a record was notarized, a notary public may supply a copy of the line item representing the requested transaction after personally identifying information has been redacted.

(p) The Secretary of State may suspend the commission of a notary or electronic notary who fails to produce any journal entry within 10 days after receipt of a request from the Secretary of State.

(q) Upon surrender, revocation, or expiration of a commission as a notary or electronic notary, all notarial records or electronic notarial records required under this Section, except as otherwise provided by law, must be kept by the notary public or electronic notary for a period of 5 years after the termination of the registration of the notary public or electronic notary public.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 102-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6-105) (from Ch. 102, par. 206-105)

Sec. 6-105. Short Forms. The following short form certificates of notarial acts are sufficient for the purposes indicated.

(a) For an acknowledgment in an individual capacity:

State of _________________

County of ________________

This instrument was acknowledged before me on ___________(date) by ___________________(name/s of person/s).

____________________________ (Signature of Notary Public) (Seal)

(b) For an acknowledgment in a representative capacity:

State of ______________________

County of _____________________

This instrument was acknowledged before me on _________(date) by __________________(name/s of person/s) as _________________________________(type of authority, e.g., officer, trustee, etc.) of _________________________(name of party on behalf of whom instrument was executed).

_______________________________ (Signature of Notary Public) (Seal)

(c) For a verification upon oath or affirmation:

State of _________________

County of_________________

Signed and sworn (or affirmed) to before me on _________(date) by _____________________(name/s of person/s making statement).

_______________________________ (Signature of Notary Public) (Seal)

(d) For witnessing or attesting a signature:

State of_________________

County of _______________

Signed or attested before me on __________(date) by __________________(name/s of person/s).

_______________________________ (Signature of Notary Public) (Seal)

(Source: P.A. 84-322.)

(5 ILCS 312/Art. VI-A heading) ARTICLE VI-AELECTRONIC NOTARIAL ACTS AND FORMS(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-101)

Sec. 6A-101. Requirements for systems and providers of electronic notarial technology.

(a) An electronic notarization system shall comply with this Act and any rules adopted by the Secretary of State.

(b) An electronic notarization system requiring enrollment shall enroll only persons commissioned as electronic notaries public by the Secretary of State.

(c) An electronic notarization vendor shall take reasonable steps to ensure that an electronic notary public who has enrolled to use the system has the knowledge to use it to perform electronic notarial acts in compliance with this Act.

(d) A provider of an electronic notarization system requiring enrollment shall notify the Secretary of State of the name of each electronic notary public who enrolls in the system within 5 days after enrollment by means prescribed by rule by the Secretary of State.

(e) The Secretary of State shall adopt administrative rules that set forth the requirements a provider of electronic notarization technology must meet in order to be approved for use in the State of Illinois. At a minimum, those administrative rules shall establish:

(1) minimum standards ensuring a secure means of authentication to be employed to protect the integrity of the electronic notary's electronic seal and electronic signature;

(2) minimum standards ensuring that documents electronically notarized be tamper-evident and protected from unauthorized use; and

(3) requirements for competent operation of the electronic platform.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-102)

Sec. 6A-102. Electronic notary not liable for system failure. An electronic notary public who exercised reasonable care enrolling in and using an electronic notarization system shall not be liable for any damages resulting from the system's failure to comply with the requirements of this Act. Any provision in a contract or agreement between the electronic notary public and provider that attempts to waive this immunity shall be null, void, and of no effect.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-652 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-103)

Sec. 6A-103. Electronic notarial acts.

(a) An electronic notary public:

(1) is a notary public for purposes of this Act and is subject to all provisions of this Act;

(2) may perform notarial acts as provided by this Act in addition to performing electronic notarizations; and

(3) may perform an electronic notarization authorized under this Article.

(b) In performing an electronic notarization, an electronic notary public shall verify the identity of a person creating an electronic signature at the time that the signature is taken by using two-way audio and video conference technology that meets the requirements of this Act and rules adopted under this Article. For the purposes of performing an electronic notarial act for a person using audio-video communication, an electronic notary public has satisfactory or documentary evidence of the identity of the person if the electronic notary public confirms the identity of the person by:

(1) the electronic notary public's personal knowledge of the person creating the electronic signature; or

(2) each of the following:

(A) remote electronic presentation by the person creating the electronic signature of a government-issued identification credential, including a passport or driver's license, that contains the signature and a photograph of the person;

(B) credential analysis of the front and back of the government-issued identification credential and the data thereon; and

(C) a dynamic knowledge-based authentication assessment.

(c) An electronic notary public may perform any of the acts set forth in Section 6-102 using audio-video communication in accordance with this Section and any rules adopted by the Secretary of State.

(d) If an electronic notarial act is performed using audio-video communication:

(1) the technology must allow the persons communicating to see and speak to each other simultaneously;

(2) the signal transmission must be in real time; and

(3) the electronic notarial act must be recorded.

(e) The validity of the electronic notarial act will be determined by applying the laws of the State of Illinois.

(f) The electronic notarial certificate for an electronic notarization must include a notation that the notarization is an electronic notarization.

(g) When performing an electronic notarization, an electronic notary public shall complete an electronic notarial certificate and attach or logically associate the electronic notary's electronic signature and seal to that certificate in a tamper evident manner. Evidence of tampering pursuant to this standard may be used to determine whether the electronic notarial act is valid or invalid.

(h) The liability, sanctions, and remedies for improper performance of electronic notarial acts are the same as described and provided by law for the improper performance of non-electronic notarial acts as described under Section 7-108.

(i) Electronic notarial acts need to fulfill certain basic requirements to ensure non-repudiation and the capability of being authenticated by the Secretary of State for purposes of issuing apostilles and certificates of authentication. The requirements are as follows:

(1) the fact of the electronic notarial act, including the electronic notary's identity, signature, and electronic commission status, must be verifiable by the Secretary of State; and

(2) the notarized electronic document will be rendered ineligible for authentication by the Secretary of State if it is improperly modified after the time of electronic notarization, including any unauthorized alterations to the document content, the electronic notarial certificate, the electronic notary public's electronic signature, or the electronic notary public's official electronic seal.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-104)

Sec. 6A-104. Requirements for audio-video communication.

(a) An electronic notary public shall arrange for a recording to be made of each electronic notarial act performed using audio-video communication. The audio-video recording required by this Section shall be in addition to the journal entry for the electronic notarial act required by Section 3-107. Before performing any electronic notarial act using audio-video communication, the electronic notary public must inform all participating persons that the electronic notarization will be electronically recorded.

(b) If the person for whom the electronic notarial act is being performed is identified by personal knowledge, the recording of the electronic notarial act must include an explanation by the electronic notary public as to how he or she knows the person and how long he or she has known the person.

(c) If the person for whom the electronic notarial act is being performed is identified by a credible witness:

(1) the credible witness must appear before the electronic notary public; and

(2) the recording of the electronic notarial act must include:

(A) a statement by the electronic notary public as to whether he or she identified the credible witness by personal knowledge or satisfactory evidence; and

(B) an explanation by the credible witness as to how he or she knows the person for whom the electronic notarial act is being performed and how long he or she has known the person.

(d) An electronic notary public shall keep a recording made pursuant to this Section for a period of not less than 7 years, regardless of whether the electronic notarial act was actually completed.

(e) An electronic notary public who performs an electronic notarial act for a principal by means of audio-video communication shall be located within the State of Illinois at the time the electronic notarial act is performed. The electronic notary public shall include a statement in the electronic notarial certificate to indicate that the electronic notarial act was performed by means of audio-video communication. The statement may also be included in the electronic notarial seal.

(f) An electronic notary public who performs an electronic notarial act for a principal by means of audio-video communication shall:

(1) be located within this State at the time the electronic notarial act is performed;

(2) execute the electronic notarial act in a single recorded session that complies with Section 6A-103;

(3) be satisfied that any electronic record that is electronically signed, acknowledged, or otherwise presented for electronic notarization by the principal is the same record electronically signed by the electronic notary;

(4) be satisfied that the quality of the audio-video communication is sufficient to make the determination required for the electronic notarial act under this Act and any other law of this State; and

(5) identify the venue for the electronic notarial act as the jurisdiction within Illinois where the notary is physically located while performing the act.

(g) An electronic notarization system used to perform electronic notarial acts by means of audio-video communication shall conform to the requirements set forth in this Act and by administrative rules adopted by the Secretary of State.

(h) The provisions of Section 3-107 related respectively to security, inspection, copying, and disposition of the journal shall also apply to security, inspection, copying, and disposition of audio-video recordings required by this Section.

(i) The Secretary of State shall adopt administrative rules to implement this Section.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-105)

Sec. 6A-105. Electronic certificate of notarial acts.

(a) An electronic notarial certificate must be evidenced by an electronic notarial certificate signed and dated by the electronic notary public. The electronic notarial certificate must include identification of the jurisdiction in which the electronic notarial act is performed and the electronic seal of the electronic notary public.

(b) An electronic notarial certificate of an electronic notarial act is sufficient if it meets the requirements of subsection (a) and it:

(1) is in the short form set forth in 6-105;

(2) is in a form otherwise prescribed by the law of this State; or

(3) sets forth the actions of the electronic notary public and those are sufficient to meet the requirements of the designated electronic notarial act.

(c) At the time of an electronic notarial act, an electronic notary public shall electronically sign every electronic notarial certificate and electronically affix the electronic seal clearly and legibly, so that it is capable of photographic reproduction. The illegibility of any of the information required under this Section does not affect the validity of a transaction.

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)

(5 ILCS 312/6A-106)

Sec. 6A-106. Electronic acknowledgments; physical presence.

(a) For purposes of this Act, a person may appear before the person taking the acknowledgment by:

(1) being in the same physical location as the other person and close enough to see, hear, communicate with, and exchange tangible identification credentials with that person; or

(2) being outside the physical presence of the other person, but interacting with the other person by means of communication technology.

(b) If the acknowledging person is outside the physical presence of the person taking the acknowledgment, the certification of acknowledgment must indicate that the notarial act was performed by means of communication technology. A form of certificate of acknowledgment as provided by the Secretary of State, which may include the use of a remote online notarial certificate, is sufficient for purposes of this subsection (b) if it substantially reads as follows: "The foregoing instrument was acknowledged before me by means of communication technology this (date) by … (each form continued as sufficient for its respective purposes.)".

(Source: P.A. 102-160, eff. 6-5-23 (See Section 91 of P.A. 103-562 for effective date of P.A. 102-160).)