Remote online notarisation in Texas and Florida: the rules compared

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Kooky

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A seller who has moved abroad, a buyer signing from another state, a title office closing a sale for someone who cannot travel: each of these ends with a document that a notary must acknowledge before the county will record it. In the United States that step is governed by state law, and each state that allows the notary and the signer to meet over a video link has written its own rules for it. Texas and Florida have each done so by statute, and their answers differ in ways that matter on the day of a closing.

This guide sets the two side by side, using the text of the Texas Government Code and of the Florida Statutes, and the published guidance of the Texas Secretary of State and the Florida Department of State. It covers who may act as an online notary, how each state commissions or registers one, where the notary and the signer may be, how identity is checked, what must be recorded and for how long, what may be charged, and what happens when the finished deed reaches the land records. How the rules apply to a given transaction depends on the documents and the parties.

Texas Government Code sections 406.108 and 406.111; Florida Statutes sections 117.245 and 117.275, 2026 edition.

Two statutes built on the same idea

Texas placed its rules in Subchapter C of Chapter 406 of the Government Code, headed Online Notary Public. The code's history notes show that the subchapter was added by House Bill 1217 of 2017 and took effect on 1 July 2018, and that Senate Bill 1780 of 2023 amended it with effect from 1 January 2024. The Secretary of State administers it and, under section 406.104, sets the technical standards by rule. The Secretary of State's pages cite those rules as Title 1, Chapter 87 of the Texas Administrative Code, revised with effect from 19 August 2018.

Florida's rules are Part II of Chapter 117 of the Florida Statutes, headed Online Notarizations. According to the Florida Department of State, they come from House Bill 409, titled Electronic Legal Documents, which was signed on 7 June 2019 and took effect on 1 January 2020; the department cites it as Chapter 2019-71 of the Laws of Florida, alongside Rule 1N-7.001 of the Florida Administrative Code.

Both states define the act in nearly the same way. In Texas, section 406.101 calls an online notarization a notarial act performed by means of two-way video and audio conference technology that meets the Secretary of State's standards. In Florida, section 117.201 defines it as a notarial act performed electronically, in which the principal or any witness appears before the notary by audio-video communication technology, itself defined as technology allowing real-time, two-way communication. Both statutes call the signer the principal.

Who may become an online notary

In both states an online notary is an existing notary with an added authority, not a separate profession.

Texas section 406.105 allows an application from a person who already holds a notary commission or who is applying for one under Subchapter A, the ordinary notary rules, and requires the applicant to meet the Subchapter A qualifications. The Secretary of State's guidance states those as being a Texas resident, at least 18 years old, with no final conviction for a felony or a crime involving moral turpitude. Its page on getting started lists a current traditional Texas commission as the first prerequisite.

Florida draws the group a little wider. Section 117.201 defines an online notary public as one of three officers, each registered with the Department of State: a notary public commissioned under Part I of Chapter 117, a civil-law notary appointed under Chapter 118, or a commissioner of deeds appointed under Chapter 721.

In both states the online authority lives and dies with the underlying commission. The Texas Secretary of State says the online commission runs concurrently with the traditional one and expires on the same date, and surrendering the traditional commission surrenders the online one automatically. The Florida Department of State says the same of its registration: it expires on the same day as the notary commission, whenever the registration was made, and a notary who successfully reapplies for a commission may then reapply as an online notary.

Getting commissioned in Texas

The Texas statute keeps the application short. Under section 406.105 it is submitted electronically, and must contain the name the applicant will use as a notary, a certification that the applicant will comply with the Secretary of State's standards, and an email address.

The practical work lies in what the applicant must have in hand first. The Secretary of State's getting-started page lists a digital certificate carrying the notary's electronic signature, an electronic seal, the ability to keep an electronic record of every online notarisation with a recording and a backup of the audio-visual conference, and access to a third party that performs identity proofing and credential analysis. The digital certificate must come from a third-party provider and be X.509 compliant. The Secretary of State's FAQ says the office cannot recommend providers or supply a list of companies.

The online application then runs through seven screens, as the Secretary of State describes them. The applicant first enters identifying data, which must match the notary database for the application to continue, then accepts each statement of the terms, including compliance with the identity-proofing standards of Chapter 87. The applicant signs the Statement of Officer with the digital certificate, uploads the image of the electronic seal, and pays by card: US$50, plus a 2.7 per cent convenience fee. A review screen and a confirmation follow, and the Secretary of State says to expect a response within three business days.

As a worked example, 2.7 per cent of US$50 is US$1.35, so the card payment comes to US$51.35. The Secretary of State's FAQ adds that no bond is required beyond the one a traditional notary already holds. Only the certificate and seal submitted with the application may be used; if either expires or becomes invalid it must be replaced, and a copy of the new one sent to the Secretary of State within ten days.

Registering in Florida

Florida asks for more before the first notarisation. Section 117.225 sets out the conditions: a current commission or appointment, a certified course covering the duties and the technology, a registration fee, a sworn registration filed with the Department of State, the name of each service provider whose technology the notary will use, a bond and insurance.

The financial conditions are stated in the section itself. The online notary must obtain a bond of US$25,000, payable to any person harmed by a breach of duty, which the section says also satisfies the bond requirement for an ordinary notary. The notary must in addition maintain errors and omissions insurance of at least US$25,000 from an authorised insurer. The course is defined in section 117.295: a 2-hour course, in person or online, satisfies the education requirement, and its provider must charge all attendees the same cost, with an exception for an organisation's own membership meetings.

The Department of State's page turns this into a sequence.

Like its Texas counterpart, the department says it does not recommend or endorse any technology vendor.

Florida also regulates the vendor, which Texas's statute does not name as a separate party. Section 117.201 defines a RON service provider as a person that supplies audio-video communication technology and related services to online notaries. Under section 117.295 a provider files a self-certification with the Department of State, which stays active for one year, and must carry errors and omissions insurance of at least US$250,000 in the annual aggregate. The same section has the department's published list of online notaries show the providers each one uses.

Where the notary and the signer may be

On location the two states reach the same result. The notary stays inside the state; the signer need not be.

In Florida both halves are in the statute. Section 117.209 says an online notary physically located in Florida may perform an online notarisation regardless of where the principal or any witnesses are, and section 117.265 adds that the act is deemed to have been performed in Florida and is governed by Florida law. When the principal is outside the state, the same section requires the notary to confirm, verbally or in writing, that the principal wants the act performed by a Florida notary under Florida law.

In Texas the signer's half is in the statute and the notary's half is in the guidance. Section 406.110 says an online notarisation that meets the subchapter is valid regardless of whether the principal is physically located in Texas at the time. The subchapter does not itself say where the notary must sit. The Secretary of State's educational page does: the online notary must be physically located within Texas at the time of the notarisation, and the signer may be located anywhere.

Proving who is signing

Both statutes give the notary two routes to identity, and the second has three parts that must all be met.

The first route is personal knowledge: the notary already knows the signer. The second, for everyone else, is the same in Texas section 406.110 and Florida section 117.265. It combines remote presentation of an identity document, credential analysis of that document, and identity proofing of the person.

Remote presentation means sending the notary an image of a government-issued identity document clear enough to identify the person and to run the analysis. Texas requires a photo document that shows the signature, and gives a passport or a driver's licence as examples. Credential analysis is the check on the document: a third party confirms it is valid, using public and proprietary data. Florida's minimum standard in section 117.295 describes commercially available automated processes that examine the document's security features and use information from the issuer or another authoritative source to confirm it is not fraudulent. Identity proofing is the check on the person, again by a third party working from public and proprietary data.

Florida writes the detail of identity proofing into the statute, as a minimum that applies until the Department of State adopts rules at least as protective. Where knowledge-based authentication is used, section 117.295 requires five or more questions about the individual, each with at least five answer choices, drawn from third-party data. The answers must be given within 2 minutes and at least 80 per cent must be correct. A principal who fails is allowed one more attempt, in which no more than three of the earlier questions may be repeated. As a worked example, on a set of exactly five questions, 80 per cent means four correct answers.

Texas leaves that level of detail to the Secretary of State's rules, which were not read for this guide.

Texas adds a privacy rule of its own. The Secretary of State's educational page cites section 87.50 of the administrative rules: the notary may not record the number of an identity card or passport, or any other number that could identify the signer, and may not record biometric data such as thumbprints.

The recording and the electronic journal

Every online notarisation leaves two traces: a written entry and a recording of the session.

Texas section 406.108 lists what the notary's electronic record must hold for each act: the date and time; the type of notarial act; the type, title or description of the document or proceeding; the printed name and address of each principal; the evidence of identity; a recording of the video and audio conference that supports that evidence, with a note of the type of identity document; and the fee charged, if any. The Secretary of State's FAQ stresses that an entry is made even when no fee is charged. The notary must keep a backup and protect it from unauthorised use, and the record must be kept for at least five years.

Florida section 117.245 requires an electronic journal with almost the same entries: date and time, type of act, description of the record, name and address of each principal, evidence of identity and the fee. The evidence of identity is either a statement that the person is personally known or a note of the identity document, of the credential analysis being satisfied and of the identity proofing being passed.

The recording is where the two diverge. In Texas the recording is one of the items in the notary's own record. In Florida the statute says the RON service provider keeps an unedited recording, and lists what it must show: the appearance of the principal and any witness, the confirmation of identity, a description of the records being signed, the notary's opening statement of the act, the principal's declaration that the signature is knowing and voluntary, and everything said and done.

Florida's retention period is twice Texas's. The journal and the recordings must be kept for at least 10 years after the notarial act, and the Department of State keeps jurisdiction to investigate notarial misconduct for the same 10 years. Either the notary or the provider may delegate storage to a secure repository by contract, reporting the delegation to the department within 30 days.

Section 117.245 adds that a missing or incomplete journal entry does not invalidate the notarial act.

What an online notary may charge

Both statutes cap the fee at the same headline figure and build it differently.

Texas section 406.111 allows up to US$25 for an online notarisation in addition to the ordinary notary fees of section 406.024. That section, as read for this guide, sets US$10 for an acknowledgment with the first signature and US$1 for each additional signature, and directs the Secretary of State to adjust the amounts for inflation every five years; no adjusted schedule was read. The Secretary of State's educational page works through three cases on those figures.

• One signer: US$25 plus US$10, a total of US$35.
• Two signers acknowledged in one certificate: US$25 plus US$10 plus US$1, a total of US$36.
• Two signers with a separate certificate each: US$35 twice, a total of US$70.

The FAQ notes that a notary may charge less or nothing, and that charging more than the statute allows is a ground for disciplinary action.

Florida section 117.275 lets an online notary, or the notary's employer, charge up to US$25 for an online notarial act. The ordinary fee in section 117.05, up to US$10 for a Part I act, is expressly subject to that online rule and is not described as an addition to it. As a worked example, a closing with two online notarial acts would be capped at US$50 in notary fees under section 117.275. The cap does not cover the technology: the section says a provider's services are not governed by it and may be charged separately.

Seal, signature and security duties

An online notary's signature is a credential, and both states treat losing control of it seriously.

Texas section 406.109 requires the notary to keep the electronic record, signature and seal under exclusive control, and to report theft or vandalism immediately to law enforcement and to the Secretary of State. Section 406.113 makes unauthorised taking or destruction of the tools that let an online notary sign or seal a Class A misdemeanour. Florida section 117.255 requires sole control of the journal and seal, tamper-evident technology, and notice to law enforcement and to the Department of State within 7 days of discovering unauthorised use.

Each certificate must say what kind of act it was. In Texas, section 406.110 requires the certificate to state that the act was an online notarisation, and the Secretary of State's sample forms carry the sentence "This notarial act was an online notarization." In Florida, section 117.265 is satisfied when the words "online notary" appear in or next to the seal, and the short forms of acknowledgment in section 695.25 offer two boxes: physical presence, or online notarization.

Witnesses, wills and paper documents

Florida's recording rules assume witnesses: section 695.26 expects each witness's printed name and post-office address on an instrument that conveys real property. Section 117.285 lets a witness attend in person or by video, and makes supervising the witnessing a notarial act in itself. A remote witness is identified in the same way as a principal and must state that they live in, and are physically in, the United States or one of its territories. For a short list of documents the section adds safeguards when fewer than two witnesses are in the room: wills, certain revocable trusts, health care advance directives, waivers of spousal rights and some powers of attorney. The provider asks the principal three screening questions, and a yes to any of them means the witnesses must be physically present; the notary then asks five questions of its own.

Texas takes one category off the table. The Secretary of State's educational page says wills, codicils and testamentary trusts cannot be signed electronically or notarised online, citing the Business and Commerce Code and the Estates Code.

On paper documents the Texas sources read do not line up. The educational page says a paper document is notarised in the traditional way with the signer physically present. The statute as amended from 1 January 2024 contains section 406.1103 on tangible documents, under which the principal has three days to send the signed document and a declaration, and the notary must receive them within 10 days. The page carries no revision date and does not mention section 406.1103, so it may predate the amendment; the two sources are set out here as they stand, and the conflict is not resolved by either.

Getting an online-notarised deed onto the record

A deed notarised online still has to be accepted by the county office that keeps the land records. Here the Florida sources are complete and the Texas sources read for this guide are not.

Florida deals with the question in Chapter 695. Section 695.27, the state's Uniform Real Property Electronic Recording Act, says a requirement that a document be an original, on paper or in writing is satisfied by an electronic document, that a signature requirement is satisfied by an electronic signature, and that a requirement of notarisation or acknowledgment is satisfied by the electronic signature of the person authorised to perform the act, with no image of a seal needed. A county recorder must go on accepting paper as well.

Section 695.28 then protects the result. A document accepted for recording is deemed validly recorded and gives notice to everyone, even if it cannot be shown to comply strictly with the rules on online notarisation, even though it was notarised by an online notary outside the signer's physical presence, and even where what was recorded is a certified printout of an electronically signed document. Section 117.265 points the same way: failure to follow the online procedures does not by itself invalidate the act. Neither provision shelters wrongdoing. Section 695.28 leaves open any challenge based on fraud, forgery, impersonation, duress, incapacity or undue influence.

For Texas, the provisions of Subchapter C read for this guide govern the notarial act and do not deal with the county clerk. The provisions of the Texas Property Code on recording, and those of the Civil Practice and Remedies Code on acknowledgments, could not be read for this guide, so the route a Texas deed takes from the online session to the county record is left as an open point here.

The statutes settle who may notarise and how the session is proved. Whether the deed is on record is settled at a different counter, under a different chapter.

Kooky, from Shaka

Kooky edits Agents Estate and builds Shaka, the payment router he made for real estate professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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