1-5-603. Requirements for certain notarial acts -- personal and remote appearance -- identification methods. (1) A notarial officer who takes an acknowledgment of a record shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the notarial officer and making the acknowledgment has the identity claimed and that the signature on the record is the signature of the individual and was made knowingly and willingly for the purposes intended.
(2) A notarial officer who takes a verification on oath or affirmation of a statement shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the notarial officer, signing the record, and making the verification has the identity claimed and that the signature on the statement verified is the signature of the individual and was made knowingly and willingly for the purposes intended.
(3) A notarial officer who witnesses or attests to a signature shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the notarial officer and signing the record has the identity claimed and has executed the record knowingly and willingly for the purposes intended.
(4) (a) A notarial officer who takes an acknowledgment or witnesses a signature of an individual who signs a record in a representative capacity shall determine:
(i) from personal knowledge or satisfactory evidence of the identity of the individual that the individual appearing before the notarial officer has the identity claimed; and
(ii) from the record, personal knowledge, or presentment of an official record that the individual holds the title or capacity claimed and has knowingly and willingly signed the record in that capacity for the purposes intended.
(b) The notarial officer may refuse to perform the notarial act if the notarial officer is not satisfied that the official record or the presented record evidences the individual's capacity to act as the principal's representative on the record presented for notarization.
(5) A notarial officer who certifies or attests a copy of a record or an item that was copied shall determine that the copy is a full, true, and accurate transcription or reproduction of the original or official record or the item. A notarial officer may certify that a tangible copy of an electronic record is an accurate copy of the electronic record. A county clerk shall accept for recording a tangible copy of an electronic record containing an original notarial certificate as satisfying any requirement that a record be an original.
(6) A notarial officer who makes or notes a protest of a negotiable instrument shall determine the matters set forth in 30-3-510(2).
(7) A notarial officer who administers an oath or affirmation shall determine from personal knowledge or satisfactory evidence of the identity of the individual that the person appearing before the notarial officer and taking the oath or affirmation has the identity claimed and is knowingly and willingly making the statement with the intent to be bound by the statement.
(8) A notarial officer who administers an oath in conjunction with taking a deposition and certifies or attests to the transcript of the deposition shall certify to the matters set forth by this part, other laws, or the court of jurisdiction.
(9) (a) If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear physically before the notarial officer or by communication technology as authorized in 1-5-615 and rules adopted pursuant to 1-5-628.
(b) Except as provided in subsection (9)(c), subsection (9)(a) modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, et seq.
(c) Subsection (9)(a) does not modify, limit, or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b).
(10) (a) Subject to subsection (10)(b), a notarial officer may perform a remote notarization or remote online notarization for a principal who is located:
(i) in this state;
(ii) outside of this state but within the United States; or
(iii) outside the United States if:
(A) the act is not known by the notarial officer to be prohibited in the jurisdiction in which the principal is physically located at the time of the act; and
(B) the record is part of or pertains to:
(I) a matter that is to be filed with or is before a public official or court, governmental entity, or other entity located in the territorial jurisdiction of the United States;
(II) property located in the territorial jurisdiction of the United States; or
(III) a transaction substantially connected with the United States.
(b) A notarial officer may perform a remote notarization or remote online notarization only if the notarial officer:
(i) is physically located in this state at the time the notarial act is performed;
(ii) identifies the principal through personal knowledge or satisfactory evidence;
(iii) executes the notarial act in a single recorded session that complies with this part;
(iv) is satisfied that any record that is signed, acknowledged, or otherwise presented for notarization by the principal is the same record remotely notarized by the notarial officer;
(v) is satisfied that the quality of the communication technology is sufficient to make the determinations required for the notarial act under this part and any other applicable law of this state;
(vi) identifies the venue as described in 1-5-629; and
(vii) is capable of meeting the requirements of 1-5-618.
(c) A notarial officer who performs a remote notarization or remote online notarization shall take reasonable steps to ensure that:
(i) the notarial officer, the principal, and any required witness are accessing the communication technology or the electronic notarization system, or both, through an authentication procedure that is reasonably secure from unauthorized access;
(ii) the principal and any required witness are viewing the same record; and
(iii) all signatures, changes, and attachments to the record are made in real time.
(d) A notarial act performed by means of communication technology is considered to have been performed in Montana and is governed by Montana law regardless of the physical location of the principal at the time of the notarization.
(11) (a) A notarial officer who certifies a fact may review a public or private record to ascertain or verify that specific data is contained or shown on the record or memorialized in a publication that the notary believes to be reliable.
(b) A notarial officer who certifies that an individual is alive shall verify from personal knowledge or satisfactory evidence that the individual appearing before the notarial officer is alive at the time of certification.
(c) A notarial officer who certifies a photograph shall verify from personal knowledge or satisfactory evidence that the photograph is an accurate representation of the individual or item represented.
(12) (a) A notarial officer has personal knowledge of the identity of an individual appearing before the notarial officer if the individual is personally known to the notarial officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
(b) A notarial officer has satisfactory evidence of the identity of an individual appearing before the notarial officer if the notarial officer can identify the individual:
(i) by means of:
(A) a passport, driver's license, or government-issued nondriver identification credential, which may be current or expired, and if expired may not be expired for more than 3 years before the performance of the notarial act; or
(B) another form of government identification issued to an individual, which:
(I) may be current or expired, and if expired may not be expired for more than 3 years before the performance of the notarial act;
(II) must contain the signature or a photograph of the individual; and
(III) must be satisfactory to the notarial officer; or
(ii) by oath or affirmation of a credible witness:
(A) physically present before the notarial officer and known to the notarial officer or whom the notarial officer can identify on the basis of a passport, driver's license, or government-issued nondriver identification record, which is current or expired, and if expired may not be expired for more than 3 years before the performance of the notarial act; or
(B) appearing by means of communication technology and identified by the notarial officer as provided in subsection (12)(c).
(c) If a principal or witness is appearing by means of communication technology, a notarial officer has satisfactory evidence of the identity of the individual if the notarial officer can identify the individual by two or more different types of technologies, processes, or services approved by the secretary of state, such as dynamic knowledge-based authentication assessment, valid public key certificate, identity proofing, remote presentation and credential analysis, or any other means prescribed in rule by the secretary of state.
(13) A notarial officer may use one or more approved identification technologies described in subsection (12)(c) for an individual who is physically in the presence of the notarial officer as satisfactory evidence of identity.
(14) A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the notarial officer of the identity of the individual.
History: En. Sec. 3, Ch. 192, L. 1993; amd. Sec. 10, Ch. 161, L. 2001; amd. Sec. 3, Ch. 391, L. 2015; amd. Sec. 1, Ch. 275, L. 2017; amd. Sec. 2, Ch. 123, L. 2019.