Remote Online Notarization Legalized in South Dakota

Things are changing in the way documents can be notarized in the state of South Dakota. There will now be the option to obtain notarization without a printed, tangible document. Effective July 1, 2024, fully remote and electronic notarization is allowed in South Dakota, using electronic documents, seals, and signatures.

While remote notarization was first introduced in the state back in 2019, new procedures have been implemented through SB 211 to fully digitize the process. Under the first remote notarization statute, a notary could observe a person, who was not in the notary’s physical presence, sign a tangible document. This observation could be done using “communication technology,” but the notary then had to also sign the same original, tangible document that was executed by that person.

In 2021, the statute was amended to clarify that the technology used for remote notarization must be “video communication technology” which allows a notary physically located in the state to communicate with a remotely located person not in the physical presence of the notary.

Now, in addition to the above-outlined remote notarization process, a new section is being added to the statute to allow electronic signatures on electronic documents. This means that, not only can South Dakota notaries observe the signing of a document through video technology with a subsequent notarization on the original, tangible document executed by the person, but now they can perform the notarial act completely digitally, on an electronically signed document, without any “original, tangible document” required.

While fully digital notarization may be convenient for some clients, it does not come without its own set of challenges for the notary. There are several requirements that SB 211 includes to have a validly notarized electronic document. First, in a fully digital notarization, the notary must verify the person’s identity by two different methods of “identity proofing.” For standard in-person notarization, as well as remote “tangible” notarization, only one method is required.

Additionally, the electronic notarial act must be placed using a “tamper-evident electronic notarization system,” of which system the notary must notify the Secretary of State, on forms prescribed by the secretary, which have yet to be promulgated.

The notary must also create an audio-visual copy of the performance of the notarial act, and must retain this recording for ten years from the date of performance. Even if the notary dies or is incapacitated, the notary’s personal representative or conservator must retain the copy. Alternatively, the recording may be held by a repository designated by or on behalf of the notary.

Finally, if the document is to be recorded with a South Dakota register of deeds, the notary must print the electronically signed and notarized document and must sign, seal, and certify, in a specified form, that the tangible copy is accurate. Although this saves the person signing the document from having to print it, travel to a notary, sign it, and then mail the original signature for recording, it does create additional time-consuming steps for the notary.

The statute provides that the Secretary of State can declare rules to create standards for these online notarial acts, including standards for credential analysis, identity proofing, and communication technology used. Clients looking to utilize remote, fully electronic notary services in South Dakota should be aware that such additional rules from the Secretary of State may be forthcoming and must be followed to ensure they obtain a validly notarized signature.