Applicable Law
Revised Uniform Law on Notarial Acts: Effective October 1, 2020, Washington enacted amendments to the Revised Uniform Law on Notarial Acts (RULONA), authorizing Washington Notaries to perform notarial acts for remotely located individuals. These amendments are summarized below.
Washington Administrative Code Chapter 308-30: The Department of Licensing adopted emergency rules to implement the Revised Uniform Law on Notarial Acts amendments for notarizing records for remotely located individuals. These rules are summarized below.
Definitions
“‘Appear personally’ means:
”(a) Being in the same physical location as another individual and close enough to see, hear, communicate with, and exchange tangible identification credentials with that individual; or
”(b) For remote notarial acts, being in a different physical location from another individual but able to see, hear, and communicate with that individual by means of communication technology” (WAC 308-30-020).
“’Communication technology’ means an electronic device or process that:
”(i) Allows an electronic records notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and
”(ii) When necessary under and consistent with other applicable law, facilitates communication with a remotely located individual with a vision, hearing, or speech impairment” (RCW 42.45.280[1][a]).
“’Foreign state’ means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe” (RCW 42.45.280[1][b]).
“’Identity proofing’ means a process or service by which a third person provides an electronic records notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources” (RCW 42.45.280[1][c]).
“’Outside the United States’ means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States” (RCW 42.45.280[1][d]).
“’Remotely located individual’ means an individual who is not in the physical presence of the electronic records notary public who performs a notarial act under subsection (3) of this section” (RCW 42.45.280[1][e]).
“‘Remote notarial act’ means a notarization that is performed using audio-video technology that meets the requirements in WAC 308-30-130 that allows for direct interaction between the notary and the individuals that are remotely located” (WAC 308-30-020).
Remote Notary Endorsement
“Before an electronic records notary public performs the electronic records notary public’s initial notarial act under [RCW 42.45.280], the electronic records notary public must notify the director that the electronic records notary public will be performing notarial acts and identify the technologies the electronic records notary public intends to use. If the director has established standards under subsection (8) of [RCW 42.45.280] and RCW 42.45.250 for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards” (RCW 42.45.280[7]).
“To apply for a remote notary endorsement, an electronic records notary public shall submit a remote notary endorsement application on forms provided by the department” (WAC 308-30-030[6]).
“An applicant may only apply for a remote notary endorsement if:
”(a) They currently hold an active notary public commission with an electronic records notary public endorsement;
”(b) They currently hold an active notary public commission, and are applying for an electronic records notary public endorsement and a remote notary endorsement simultaneously; or
”(c) They are applying for a notary public commission, an electronic records notary public endorsement, and a remote notarial acts endorsement simultaneously” (WAC 308-30-030[7]).
“A notary public shall reapply with the department for each commission term before performing notarial acts” (WAC 308-30-030[8]).
“A notary public may elect not to apply for … a remote notary endorsement” (WAC 308-30-030[9]).
Application: A Notary must apply for an electronic records Notary endorsement (see “Electronic Records Notary Public Commission” under “Electronic Notarial Acts,” above). If a Notary already has an electronic records Notary endorsement, the Notary may email the Department of Licensing to apply for a remote notary endorsement. A Notary must include the name of their remote notarization software in the email request to the Department.
“An applicant may not perform any notarial acts on a tangible or electronic record before receiving a notary public commission and the appropriate endorsement from the department” (WAC 308-30-040[3]).
Term of Endorsement: “Unless terminated pursuant to WAC 308-30-270, … the remote notary endorsement [is] valid from the date the endorsement is issued by the department, and continues as long as the notary public’s current commission remains valid” (WAC 308-30-050[2]).
Termination of Endorsement: “A notary public may terminate their notary public commission and/or … remote notary endorsement by notifying the department of this intent in writing and disposing of all or any part of a tamper-evident technology in the notary’s control whose purpose was to perform electronic notarizations” (WAC 308-30-270[2]).
“A notary public may terminate the … remote notary endorsement and maintain the underlying notary public commission” (WAC 308-30-270[3]).
Technology Systems
Approval of Systems: Not required. “To perform remote notarial acts remotely, you’ll need specialized software. The software must be able to meet certain standards. Check with the software maker to find out if their product is capable of meeting these standards” (website, “Remote Notarization for Licensed Notaries”).
Listing of System Providers: Not provided.
Authorized Remote Notarial Acts
“A notary public who has received both an electronic records notary public endorsement and a remote notarial acts endorsement from the department may perform the following remote notarial acts:
”(a) Taking an acknowledgment;
”(b) Taking a verification on oath or affirmation;
”(c) Witnessing or attesting a signature;
”(d) Certifying or attesting a copy;
”(e) Certifying that an event has occurred or an act has been performed; and
”(f) Noting a protest of a negotiable instrument, if the notary public is:
“(i) Acting under the authority of an attorney who is licensed to practice law in this state or another state; or
“(ii) Acting under the authority of a financial institution regulated by this state, another state, or the federal government” (WAC 308-30-290[1]).
All Laws Apply: In performing remote notarial acts, a notary public shall comply with all requirements for electronic notarial acts under this chapter” (WAC 308-30-290[2]).
Fees: For the fees a Notary may charge for performing a remote online notarization, see “Fees,” above.
Identification
Requirement: In performing a remote online notarial act, an electronic records Notary Public must verify the identity of a remotely located individual through the Notary’s personal knowledge, the oath or affirmation of a credible witness, or two forms of identity proofing (RCW 42.45.280[3][a]).
“In performing remote notarial acts, if a notary public does not have satisfactory evidence of the identity of a remotely located individual under subsection (4) of this section, the notary public must reasonably verify the individual’s identity through two different types of identity proofing consisting of a credential analysis procedure and a dynamic knowledge-based authentication assessment as provided in subsections (2) and (3) of this section” (WAC 308-30-300[1]).
“A notary public has satisfactory evidence of the identity of a remotely located individual if:
“(a) The notary public has personal knowledge of the identity of the individual; or
“(b) The individual is identified by oath or affirmation of a credible witness in accordance with the following requirements:
“(i) To be a credible witness, the witness must have personal knowledge of the remotely located individual;
“(ii) The notary public must have personal knowledge of the credible witness or verify the identity of the credible witness by two different types of identity proofing in accordance with subsections (1), (2), and (3) of this section; and
“(iii) A credible witness may be outside the physical presence of the notary public or remotely located individual if the notary public, credible witness, and remotely located individual can communicate by using communication technology” (WAC 308-30-300[4]).
Credential Analysis: “Credential analysis must use public or private data sources to confirm the validity of the identification credential presented by a remotely located individual and shall, at a minimum:
“(a) Use automated software processes to aid the notary public in verifying the identity of each remotely located individual;
“(b) Require the identification credential to pass an authenticity test, consistent with sound commercial practices, that uses appropriate technologies to confirm the integrity of visual, physical, or cryptographic security features and to confirm that the identification credential is not fraudulent or inappropriately modified;
“(c) Use information held or published by the issuing source or an authoritative source, as available and consistent with sound commercial practices, to confirm the validity of personal details and identification credential details; and
“(d) Enable the notary public visually to compare for consistency the information and photograph on the identification credential and the remotely located individual as viewed by the notary public in real time through communication technology” (WAC 308-30-300[2]).
Dynamic Knowledge-Base Authentication Assessment: “A dynamic knowledge-based authentication assessment is successful if it meets the following requirements:
“(a) The remotely located individual must answer a quiz consisting of a minimum of five questions related to the individual’s personal history or identity formulated from public or private data sources;
“(b) Each question must have a minimum of five possible answer choices;
“(c) At least eighty percent of the questions must be answered correctly;
“(d) All questions must be answered within two minutes;
“(e) If the remotely located individual fails the first attempt, the individual may retake the quiz one time within twenty-four hours;
“(f) During a retake of the quiz, a minimum of forty percent of the prior questions must be replaced;
“(g) If the remotely located individual fails the second attempt, the individual is not allowed to retry with the same online notary public within twenty-four hours of the second failed attempt; and
“(h) The notary public must not be able to see or record the questions or answers” (WAC 308-30-300[3]).
Confirmation of Record
“An electronic records notary public located in this state may perform a notarial act using communication technology for a remotely located individual if … [t]he electronic records notary public is reasonably able to confirm that a record before the electronic records notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature” (RCW 42.45.280[3][b]).
“The [communication technology] process must provide a means for the notary public reasonably to confirm that an electronic record before the notary public is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature” (WAC 308-30-310[1]).
Audio-Visual Recording
For the requirements that a Notary make and retain an audio-visual recording of a notarial act for a remotely located individual, see “Records of Notarial Acts,” above.
Individual Outside the United States
The record that is to be notarized for a remotely located individual located outside the United States must relate to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States or involve property located in the territorial jurisdiction of the United States or involve a transaction substantially connected with the United States (RCW 42.45.280[d][i]).
In addition, the authorization to perform a notarial act for a remotely located individual located outside the United States requires that the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located (RCW 42.45.280[d][ii]).
Communication Technology
To perform remote notarial acts the notary must use technology which … [h]as two-way audio-visual capabilities between the notary and signer(s)” (WAC 308-30-300[2]).
Audio Clarity and Visual Resolution: “Communication technology for remote notarial acts must provide for synchronous audio-visual feeds of sufficient audio clarity and video resolution to enable the notary public and remotely located individual to see and speak with each other” (WAC 308-30-310[1]).
Authentication: “Communication technology must provide reasonable security measures to prevent unauthorized access to:
”(a) The live transmission of the audio-visual feeds;
”(b) The methods used to perform identify verification; and
”(c) The electronic record that is the subject of the remote notarial act” (WAC 308-30-310[2]).
Exiting Communication Technology: “If a remotely located individual must exit the workflow, the individual must restart the identify verification process required under WAC 308-30-300 from the beginning” (WAC 308-30-310[3]).
Security of Technology: To perform remote notarial acts the notary must use technology which … [h]as reasonable security measures which ensure notarial acts are secure once recorded” (WAC 308-30-300[4]).
Certificate of Remote Act
Requirement: “For every … remote notarial act, a notary public shall complete an electronic notarial certificate that complies with the requirements of these rules, RCW 42.45.130 and 42.45.140” (WAC 308-30-150[1]).
Indication of Remote Act: “If a notarial act is performed under this section, the certificate of notarial act required by RCW 42.45.130 and the short form certificate provided in RCW 42.45.140 must indicate that the notarial act was performed using communication technology” (RCW 42.45.280[4]).
Certificate Forms: For the form of certificates for a notarial act performed for a remotely located individual prescribed in WAC 308-30-320, see “Certificate of Notarial Act,” above.
Sufficiency of Form: “A short form certificate provided in RCW 42.45.140 for a notarial act subject to [RCW 42.45.280] is sufficient if it:
”(a) Complies with rules adopted under subsection (8)(a) of [RCW 42.45.280]; or
”(b) Is in the form provided by RCW 42.45.140 and contains a statement substantially as follows: “This notarial act involved the use of communication technology” (RCW 42.45.280[5]).
Completion at Time of Notarization: “An electronic notarial certificate shall be completed at the time of notarization and in the presence of the principal” (WAC 308-30-150[2]).
Self-Proving Electronic Will
Effective January 1, 2022, a Notary Public who has an electronic records endorsement to perform remote notarial acts may notarize a self-proving affidavit to a testator’s electronic will: “An electronic will may be simultaneously executed, attested, and made self-proving if:
“(a) The affidavits of the attesting witnesses are affixed to or logically associated with the electronic will; and
“(b) The qualified custodian maintains custody of the electronic will at all times following execution by the testator and witnesses” (RCW 11.12.450[1]).
“The affidavits under subsection (1)(a) of this section must state such facts as the attesting witnesses would be required to testify to in court to prove such electronic will, and must be:
“(a) Made before an officer authorized to administer oaths or, if fewer than two attesting witnesses are physically present in the same location as the testator at the time of signing under RCW 11.12.440(1)(b), before an officer authorized under RCW 42.45.280; and
“(b) Evidenced by the officer’s certificate under official seal affixed to or logically associated with the electronic will” (RCW 11.12.450[1]).
The statute provides a statutory form for a self-proving electronic will that includes a notarial certificate for the testator and the witnesses (RCW 11.12.450[3]).