SB898: Bill Text

Analysis by the Legislative Reference Bureau

Under current law, an individual executing an estate planning document that requires a notarial act must appear personally before a notarial officer. In addition, current law requires an individual executing a declaration to health care professionals, an authorization for final disposition, or a power of attorney for health care to sign the document in the presence of two witnesses, in addition to certain other requirements. Current law also requires an individual executing a will to sign the will, acknowledge the will, or acknowledge the individual's signature on the will in the conscious presence of two witnesses.

This bill makes several changes to the notarization and witnessing requirements for these documents. Specifically, under the bill, a declaration of health care professionals may be witnessed only by individuals who are at least 18 years of age. In addition, under the bill, an individual may execute a power of attorney for finances and property by signing the document before two witnesses via two-way, real-time audiovisual communication according to the requirements detailed below, whereas, under current law, an individual may execute a power of attorney for finances and property only by acknowledging the document before a notarial officer. Additionally, under current law, if an individual executing an authorization for final disposition is physically unable to sign the authorization, another individual may sign the authorization on his or her behalf; the bill specifies that, in these situations, the signing individual must be at least 18 years of age and must sign in the physical presence of the individual executing the authorization.

The bill authorizes remote notarization of an estate planning document and remote witnessing of a declaration to health care professionals, an authorization for final disposition, a power of attorney for health care, a power of attorney for finances and property, or a will via two-way, real-time audiovisual communication if a remotely located individual, declarant, person executing a power of attorney for health care (principal), or testator, or an individual signing on that person's behalf, signs the document in accordance with the following requirements:

1. The signing is supervised by an attorney.

2. The remotely located individual, declarant, principal, or testator is physically located in this state during the two-way, real-time audiovisual communication.

3. Each notary public or remote witness, as applicable, attests to being physically located in this state during the two-way, real-time audiovisual communication.

4. The remotely located individual, declarant, principal, or testator and each remote witness, as applicable, is positively identified.

5. The remotely located individual, declarant, principal, or testator identifies anyone else present in the same physical location as the remotely located individual, declarant, principal, or testator.

6. The remotely located individual, declarant, principal, or testator displays the document; confirms the number of pages in the document and the page number on which the signature is to be affixed; and declares to the notary public or remote witnesses, as applicable, and the supervising attorney that the remotely located individual, declarant, principal, or testator is 18 years of age or older and that the document is being executed as a voluntary act.

7. The remotely located individual, declarant, principal, or testator, or another individual 18 years of age or older authorized to sign on that person's behalf in that person's physical presence, signs the document in a manner that allows the notary public or remote witnesses, as applicable, and supervising attorney to see the signing.

8. The audiovisual communication technology 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, declarant, principal, or testator, the notary public or remote witnesses, as applicable, 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.

9. The document indicates that it is being executed pursuant to these requirements.

10. The document is signed by the remotely located individual, declarant, principal, or testator and the notary or remote witnesses, as applicable, and delivered to the supervising attorney.

11. The supervising attorney completes and attaches to the document an affidavit of compliance that contains certain information and serves as conclusive evidence that the document was executed in compliance with the requirements under the bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB898,1 Section 1 . 140.147 of the statutes is created to read:

SB898,3,3 140.147 Notarial act performed for remote execution of estate planning documents. (1) In this section:

SB898,3,4 (a) “Estate planning document” means any of the following:

SB898,3,5 1. A will or a codicil.

SB898,3,8 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.

SB898,3,9 3. A certification of trust as provided in s. 701.1013.

SB898,3,10 4. A power of attorney for finances and property.

SB898,3,11 5. A power of attorney for health care.

SB898,3,13 6. A marital property agreement or an amendment to a marital property agreement.

SB898,3,15 7. A written instrument evidencing a nonprobate transfer pursuant to s. 705.10, 705.15, 705.18, or 766.58 (3) (f).

SB898,3,16 8. A declaration to health care professionals.

SB898,3,17 9. An authorization for final disposition.

SB898,3,18 10. An authorization for use and disclosure of protected health information.

SB898,4,1 11. An instrument of disclaimer under s. 854.13.

SB898,4,2 12. An instrument exercising a power of appointment under ch. 702.

SB898,4,5 (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.

SB898,4,8 (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.

SB898,4,11 (2) (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.

SB898,4,14 (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.

SB898,4,18 (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:

SB898,4,20 (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.

SB898,4,22 (b) The remotely located individual attests to being physically located in this state during the 2-way, real-time audiovisual communication.

SB898,4,24 (c) The notary public attests to being physically located in this state during the 2-way, real-time audiovisual communication.

SB898,5,5 (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.

SB898,5,10 (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.

SB898,5,16 (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.

SB898,5,23 (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.

SB898,6,5 (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.

SB898,6,7 (i) The estate planning document indicates that it is being executed pursuant to this section.

SB898,6,8 (j) One of the following occurs:

SB898,6,18 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.

SB898,7,8 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.

SB898,7,20 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.

SB898,7,22 (k) The supervising attorney completes and attaches to the estate planning document an affidavit of compliance that contains the following information:

SB898,7,23 1. The name and residential address of the remotely located individual.

SB898,7,24 2. The name and residential or business address of the notary public.

SB898,8,4 3. The address within the state where the remotely located individual was physically located at the time that the estate planning document was signed by the remotely located individual or another individual on behalf of the remotely located individual.

SB898,8,7 4. The address within the state where the notary public was physically located at the time the notary public witnessed the remotely located individual's signing of the estate planning document.

SB898,8,10 5. A statement that the remotely located individual and notary public were known to each other and the supervising attorney or a description of the form of identification used to confirm the identity of the remotely located individual.

SB898,8,12 6. The identity of anyone else present in the same physical location as the remotely located individual during the signing.

SB898,8,16 7. Confirmation that the remotely located individual declared 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 was being executed as the remotely located individual's voluntary act.

SB898,8,21 8. Confirmation that the notary public and the supervising attorney were able to see the remotely located individual, or an individual 18 years of age or older at the express direction and in the physical presence of the remotely located individual, sign, and that the remotely located individual appeared to be 18 years of age or older and acting voluntarily.

SB898,8,22 9. A description of the audiovisual technology used for the signing process.

SB898,8,25 10. If the estate planning document was not signed in counterpart, a description of the method used to forward the estate planning document to the notary public and to the supervising attorney upon completion of the signing process.

SB898,9,4 11. If the estate planning document was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document.

SB898,9,6 12. The name, state bar number, and business or residential address of the supervising attorney.

SB898,9,11 13. Any other information that the supervising attorney considers to be material with respect to the remotely located individual's capacity to sign a valid estate planning document, the remotely located individual's and notary public's compliance with this section, or any other information that the supervising attorney deems relevant to the signing of the estate planning document.

SB898,9,14 (4) An affidavit of compliance completed and attached to the estate planning document pursuant to sub. (3) (k) shall serve as conclusive evidence that the estate planning document was executed in compliance with this section.

SB898,9,15 (5) An affidavit of compliance shall be in substantially the following form:

SB898,9,16 AFFIDAVIT OF COMPLIANCE

SB898,9,17 State of ....

SB898,9,18 County of ....

SB898,9,19 The undersigned, being first duly sworn under oath, states as follows:

SB898,9,23 This Affidavit of Compliance is executed pursuant to Wis. Stat. § 140.147 to document the signing of the [name of estate planning document] of [name of remotely located individual] via remote appearance by 2-way, real-time audiovisual communication technology on [date].

SB898,9,24 1. The name and residential address of the remotely located individual is ....

SB898,9,25 2. The name and [residential or business] address of the notary public is ....

SB898,10,3 3. The address within the state of Wisconsin where the remotely located individual was physically located at the time the remotely located individual signed the estate planning document is ....

SB898,10,6 4. The address within the state of Wisconsin where the notary public was physically located at the time the notary public witnessed the remotely located individual's signing of the estate planning document is ....

SB898,10,11 5. The remotely located individual and notary public were known to each other and to the supervising attorney. - OR - The remotely located individual and notary public were not known to each other and to the supervising attorney. The remotely located individual produced the following form of photo identification to confirm his or her identity:

SB898,10,12 ....

SB898,10,14 6. The following persons were in the same physical location as the remotely located individual during the signing:

SB898,10,15 ....

SB898,10,19 7. The remotely located individual declared that the remotely located individual is 18 years of age or older, that the document is the remotely located individual's [name of estate planning document], and that the document was being executed as the remotely located individual's voluntary act.

SB898,10,23 8. The notary public and the supervising attorney were able to see the remotely located individual sign or another individual on behalf of the remotely located individual sign. The remotely located individual appeared to be 18 years of age or older and acting voluntarily.

SB898,10,24 9. The audiovisual technology used for the signing process was ....

SB898,11,10 10. The estate planning document was not signed in counterpart. The following methods were used to forward the estate planning document to the notary public and to the supervising attorney after signing. - OR - The estate planning document was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the estate planning document, the signature of the remotely located individual, and the notarial act on [date] by [e.g., attaching page 7 from each counterpart signed by the notary public to the back of the estate planning document signed by the remotely located individual].

SB898,11,12 11. The name, state bar number, and [business or residential] address of the supervising attorney is ....

SB898,11,14 12. [Optional] Other information that the supervising attorney considers to be material is as follows: ....

SB898,11,15 .... (signature of supervising attorney)

SB898,11,17 Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney).

SB898,11,18 .... (signature of notarial officer)

SB898,11,19 Stamp