WI Senate Bill 898

Legislation

State: Wisconsin
Signed: March 21, 2024

Effective: March 23, 2024
Chapter: Act No. 130

Summary

Wisconsin authorizes and enacts rules for the remote notarization of estate planning documents.

Affects

Adds Section 140.147 to the Wisconsin Statutes.

Changes

Defines "estate planning document" as (a) A will or a codicil. (b) A declaration of trust or other document creating a trust as provided in WS 701.0401 or an amendment to a declaration of trust or other document creating a trust. (c) A certification of trust as provided in WS 701.1013. (d) A power of attorney for finances and property. (e) A power of attorney for health care. (f) A marital property agreement or an amendment to a marital property agreement. (g) A written instrument evidencing a nonprobate transfer pursuant to WS 705.10, 705.15, 705.18, or 766.58 (3)(f). (h) A declaration to health care professionals. (i) An authorization for final disposition. (j) An authorization for use and disclosure of protected health information. (k) An instrument of disclaimer under WS 854.13. (l) An instrument exercising a power of appointment under WS Chapter 702.
Authorizes remote notarization of an estate planning document if a remotely located individual signs the document in accordance with the requirements below.
Requires remote notarization of an estate planning document to be supervised by an attorney.
Requires the remotely located individual, declarant, principal, or testator to be physically located in Wisconsin during the two-way, real-time audiovisual communication.
Requires each Notary notarizing a remote estate planning document to attest to being physically located in Wisconsin during the two-way, real-time audiovisual communication.
Requires the remotely located individual, declarant, principal, or testator and each remote witness, as applicable, to be positively identified.
Requires the remotely located individual to identify anyone else present in the same physical location as the remotely located individual and, if possible, the make a visual sweep of the remotely located individual's physical surroundings so that the Notary and the supervising attorney can confirm the presence of any other persons.
Requires the remotely located individual, declarant, principal, or testator to display the document, confirm the number of pages in the document and the page number on which the signature is to be affixed, and declare to the Notary 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 the person’s voluntary act.
Requires the remotely located individual, declarant, principal, or testator, or another individual 18 years of age or older who is authorized to sign on that person's behalf in that person's physical presence, to sign the document in a manner that allows the Notary and supervising attorney to see the signing.
Requires the audiovisual communication technology for a remote notarization of an estate planning document to allow 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, 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 communication if it allows that person to actively participate in the signing in real time.
Requires the estate planning document to indicate that it is being executed pursuant to these requirements.
Requires the estate planning document to be signed by the remotely located individual, declarant, principal, or testator, and the Notary and delivered to the supervising attorney.
Requires the supervising attorney to complete and attach to the document an affidavit of compliance that contains certain information, as specified, which serves as conclusive evidence that the document was executed in compliance with the requirements under the new law.
Creates the statutory affidavit of compliance form to be used for the remote notarization of an estate planning document.

Analysis

Senate Bill 898 is the confluence of a series of legislative events of the distant past and recent present. First, when Wisconsin enacted the Uniform Electronic Transactions Act UETA in 2004, the Act exempted wills, codicils (amendments to wills), and testamentary trusts from the scope of the Act. This meant that electronic signatures could not be used to execute these documents in electronic form, nor could any applicable documents be notarized using electronic signatures. Fast forward to 2020 when Wisconsin enacted the Revised Uniform Law on Notarial Acts and remote notarization provisions. That Act specifically prohibited Notaries from using remote notarization to notarize wills, codicils, testamentary trusts, living trusts or trust amendments for personal use, powers of attorney, marital property agreements, powers of attorney for healthcare, declarations to physicians, and authorizations for use and disclosure of protected health information. Then, in 2022, the Uniform Law Commission adopted its Uniform Electronic Estate Planning Documents Act. This Act corrected the ULC’s policy decision with the UETA by permitting electronic estate documents that weren’t electronic wills and codicils to be executed and notarized with electronic signatures.

Thus, against this backdrop, Senate Bill 898 now authorizes remote notarization of estate planning documents as defined (see “Changes” #1). The state is still concerned about protecting these remote notarizations from fraud and abuse, which is why it requires the direct involvement of a supervising attorney and institutes other guardrails noted above.

Read Senate Bill 898.