Chapter 140

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.

140.147(3)(k)2. 2. The name and residential or business address of the notary public.

140.147(3)(k)3. 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.

140.147(3)(k)4. 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.

140.147(3)(k)5. 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.

140.147(3)(k)6. 6. The identity of anyone else present in the same physical location as the remotely located individual during the signing.

140.147(3)(k)7. 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.

140.147(3)(k)8. 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.

140.147(3)(k)9. 9. A description of the audiovisual technology used for the signing process.

140.147(3)(k)10. 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.

140.147(3)(k)11. 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.

140.147(3)(k)12. 12. The name, state bar number, and business or residential address of the supervising attorney.

140.147(3)(k)13. 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.

140.147(4) (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.

140.147(5) (5) An affidavit of compliance shall be in substantially the following form:

AFFIDAVIT OF COMPLIANCE

State of ....

County of ....

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

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].

1. The name and residential address of the remotely located individual is ....