What You Need to Know About Authenticating Cross-Border Documents and the Importance of Electronic Apostilles (e-APP)

Nov 29, 2022 | ACTEC Guidance & Comments, General Estate Planning, International T&E, Podcasts, Technology Recommendations

“What You Need to Know About Authenticating Cross-Border Documents and the Importance of Electronic Apostilles,” that’s the subject of today’s ACTEC Trust and Estate Talk.

Transcript/Show Notes

This is Toni Ann Kruse, ACTEC Fellow from New York. The American College of Trust and Estate Counsel wrote to the National Association of Secretaries of State with support of an initiative for states to implement a process for issuing electronic apostilles. ACTEC Fellows Leigh Basha from Washington, D.C. and Gerard Brew from New York will explain ACTEC’s support of electronic apostilles and the importance of apostilles generally. Welcome, Leigh and Gerard.

Gerard: This is Gerard, and I suppose I’ll start with, Leigh: Can you tell us what apostille is?

Can you tell us what an apostille is?

Leigh: Yes. Well, this is one word that might be a bit like you say “tomatoe” and I say “tomato.” So, the English – usually in America – many pronounce it apostille, but technically it’s a French word, and it’s pronounced “uh-paa-stil”. So, we can use whatever pronunciation you feel comfortable with on this podcast and for those listening.

So, an apostille is a form of authentication issued to notarized and to government-issued documents. So, either/or, for use internationally in countries that participate in The Hague Convention of 1961. And the U.S. State Department issues a list of countries that accept the apostille.

Gerard: Well, thank you. And that, Leigh, reminds me of the distinction – I studied French – and it reminds me of the distinction in our law. People use the word cy pres, but actually that’s a French term that should be pronounced “sigh pray”, but no one does it. So, thank you and I’ll use an apostille. So, what if a country doesn’t adopt the apostille?

What if a country doesn’t adopt the apostille?

Leigh: Well, if they don’t – and there are – and I’ll go over a few of which ones have and which ones have not. But, if a country has not adopted the apostille then they have to go through a very burdensome process for authenticating a document for use in the other country if they haven’t adopted this convention. And it entails a very burdensome five-step authentication process including having to go through the civil registry, the ministry of justice, the ministry of foreign affairs, the consulate at the state of origin, the ministry of foreign affairs at the state of origin, and so on, which is time consuming as you can imagine.

By contrast, with the apostille process, a public document or a notarized one that is being authenticated, that is executed in the state of origin, is apostilled by a competent authority in the state of origin. So, the apostille can be verified by the receiving authority in a register, and then the public document is ready to be produced or be used in the state of destination. So, it’s a much simpler process.

Gerard: Well, thank you. And how many parties, or countries, are participants in the Apostille Convention?

How many parties or countries are participants in the Apostille Convention?

Leigh: Well, it’s changing. It’s growing, but currently, there are approximately 124 countries that participate in the apostille and these include all of the United States, Mexico, Central America, pretty much all of South America, Russia, Europe, Australia, and parts of Africa, mostly in the south, including South Africa. I would say, looking at the map, the notable exceptions that have not signed on to this are China, most of Africa, and oddly, Canada, but the rest of the world pretty much has adopted it. So, it’s really taken hold in the majority of countries.

Gerard: Well, this certainly is a concept that most practicing lawyers and people involved with international aspects of the state should be familiar with. So, where does the practicing lawyer find this Apostille Convention?

Where does the practicing lawyer find this apostille convention?

Leigh: Well, it’s found in the Hague Conference on Private International Law, which the acronym now is HCCH Apostille Convention, and that organization is an intergovernmental organization in the area of private international law that administers several international conventions and protocols. And it’s been around for a long time. It was founded in 1893 and the HCCH also has other conventions leading to cross-border legal cooperation.

So, the Apostille Convention abolishes the traditional, cumbersome legalization process using a single formality, and so, the issuance of the certificate is called an apostille. And an apostille issued by the state of origin authenticates the origin of a public document or one that was notarized in that jurisdiction so that it can be presented abroad in another contracting state. So, it’s always used in the international context. You wouldn’t have a document apostille in Texas, for example, and then use it in New York. It’s an across-that-border context and it’s used to facilitate the circulation of public documents internationally for individuals, families, and businesses.

And for those that use the Apostille Convention, it’s estimated that there’s a reduction of time and cost saved, for officials and the users alike, to be approximately $500 million So, it’s not insignificant by any means.

Gerard: This sounds like a process by which a document within the U.S. from one state is certified or authenticated for use in another state. So, Leigh, can you give us some examples of when an apostille is used?

Can you give us some examples of when an apostille is used?

Leigh: Yes. In fact, I’m working on one currently where we had to get quite a number of documents apostilled for an international estate. So, in this example, just using it as a situation, there was a U.S. citizen who died owning property in France, and to transfer titles to the French property to the decedent’s wife, pursuant to his will, we needed to provide to the French civil law notary, referred to as “the notaire,” a certificate – listen to all the things we had to get and have them all apostilled.

So, a certificate of birth for both the decedent, for each of the descendants, and for the surviving spouse, the decedent’s death certificate, their marriage license, the will and all its codicils, the certificate of qualification in the state where it was being probated. So, it was quite a number of documents that needed to be apostilled and then sent to France. So, having it be apostilled if I had only been electronic, it would have been even easier.  But as an example, just to show you what it reads – it’s very simple, the document. So, in this instance, it was a Texas decedent and Texas probate, and so it reads, and I think this is just helpful to sort of hear what it actually sounds like.

The State of Texas, Secretary of State, not for use within the United States of America; this apostille only certifies the signature, the capacity of the signer, and the seal or stamp it sealed. It does not certify the content of the document for which it was issued. Certificate validation is available at www.sos.state.tex.us, and so it basically certifies that it was issued, who signed the public document, in what capacity the signer was acting, the stamp it bears, the date it was certified, and the signature of the secretary of state. That is an apostille in a nutshell.

Gerard:  Well, that’s very helpful and I know, Leigh, one of your initiatives has been to work on allowing for this to happen in an electronic fashion. Can you tell us a little bit about what is known as the e-APP, A-P-P?

Can You tell us a little bit about what is known as the e-APP?

Leigh: Yes. So, thank you, Gerard. The e-APP is an electronic apostille. So, just like we’ve seen how technology can work during the shutdown of the coronavirus situation for the last few years, and how important it was to have the ability to do things electronically, including sometimes Zoom qualifications for executors, electronic notarizations. They’re talking about E-wills. Well, here we’re in the context of the E-Apostille or the e-APP, which seeks to promote and encourage the use of technology under the Apostille Convention because it will improve accessibility and usability and streamline the work processes of the competent authorities.

So, it’s helpful for them and it’s obviously helpful for the end user, the consumer. We as the attorneys and the advisors trying to get these documents for our client to be used in whatever context, whether it’s a business context, using for succession, or anything along those lines, and it also generates more user-friendly apostilles and enhances the security of the cross-border transfer of documents. There are actually two parts to the e-APP. One part is the actual E-Apostille and the other is the E-Register, but together they’re referred to as the “e-APP.”

The E-Apostille is a certificate issued in electronic form, signed in an electronic signature with a digital certificate but the E-Apostille may also be issued on electronic documents or on paper documents that have been scanned and converted into electronic form.

Gerard: Well, with the growing number of cross-border estate matters, in the example you described, Leigh, it seems to be becoming increasingly common. I very much think this topic deserves sustained attention. Can you tell us a little bit more about how the E-Register works?

Can you tell us a little bit more about how the E-Register works?

Leigh: Yes. So, the E-Register, which actually right now is more common than the e-APP in some jurisdictions basically, it’s maintained in a publicly accessible electronic form. So, it would allow any interested person to verify the apostille online. And again, just to mention, the documents that are generally being apostilled are public documents. So, it’s not a concern that “Oh my gosh, now somebody can go see that this was their birth certificate.” Well, birth certificates, you can get. It’s issued by a particular state, for example, in the U.S. So, while many contracting parties maintain electronic registers, the publicly accessible element is what determines whether it will be classified as an E-Register.

And so far the implementation of the e-APP is about 22, with E-Registers being 29. In the U.S., there are 12 E-Registers, and only one state, so far, has both the E-Apostille and the E-Register, and that is Montana. So, hats off to Montana, I must say. So, the apostille validly issued by one contracting party must be accepted by other contracting parties including, obviously, the E-Apostille, not just the regular apostille. So, they have the same requirements as a paper apostille under the Convention.

Gerard: What does it take to implement the e-APP?

What does it take to implement the e-APP?

Leigh: I’m really glad you asked that question because there is no requirement for endorsement, approval, or any legislative action. It is already specified in the Convention. So, the U.S. already has remote notarization, online notarization, and electronic notarization, depending on the state, and we’ve learned from the pandemic that using technology to handle such matters provides a huge benefit. And there’s nothing that needs to be passed. For each state, the Secretary of State just needs to basically get the software and start making it available in the electronic apostille.

Gerard: Wow. Well, this sounds like something we should work to get implemented and I know you have been, Leigh. What can we do to get this implemented fully in states other than Montana?

What can we do to get this implemented fully in other states?

Leigh: Yes. Well, we are trying. So, we need to really motivate the U.S. Secretaries of State to implement the e-APP and start issuing the E-Apostille. NASS, which is the National Association of Secretaries of State, just recently, in July of this year, so this summer, passed a resolution recommending that the states implement a process for issuing electronic apostille. So, that was really, I think, a watershed landmark in recognition of how important this is and for the association to tell the Secretaries of State, “We are recommending this. You should go forward and start implementing it in your state.” Goes a long way and we’re really hoping that we’ll see some progress now that that’s been passed.

Gerard: And how can ACTEC help with that process?

How can ACTEC Help with the process?

Leigh: Well, first off, ACTEC has already helped in supporting the e-APP and E-Register by writing to NASS (National Association of Secretaries of State), and ACTEC’s support in this initiative as well as that of other organizations including, for example, the American Association of Matrimonial Lawyers and the like, and businesses are really calling this to light. And NASS took notice and then ended up passing this resolution, and now it’s up to the states to do so. So, let’s stay tuned.

Gerard: Well, it does take us to the states, and I had the opportunity to work with you, Leigh, in getting the ACTEC state chairs to consider this issue. So, what can we do within the College to have more states work on passing it?

What can we do within the College to have more states work on passing it?

Leigh: When this happened, Gerard, I appreciated your help on that because you encouraged the state chairs to write to the Secretaries of State. But you will recall that was roughly around the whole issue with the election, and so they were a bit preoccupied, I’m afraid. And therefore, taking this on, they may have just had to deal with one priority over another, but now that things hopefully have settled down, they will take a second look at this, and the states and the Secretaries of State will do so.

And it may be a good time for the ACTEC state chairs too, at the state level, whether they’re writing, the state chairs are writing again to the Secretaries of State, and I know some Secretaries of State, there’s been some turnover. So, not all the Secretaries of State who may have received the letter about two years ago are still in that role, and so I think it’s about time to perhaps seek to have more attention given to this and possibly have the states go forward and implement it.

Gerard: And I think that would be a wonderful thing to put on the agenda for the State Chairs Steering Committee again, Leigh, given so many things went on during the pandemic and I know Melissa Willms, who’s now my successor, would, I’m sure, be interested in doing that. Are there any states that you would like to see implement this process first?

Are there any states you would like to see implement it first?

Leigh: Actually, we would like to see all states implement the e-APP, but I think the priorities would be some of the big-ticket locations, including Virginia, because they have the electronic notarization. One of the first to do that, even pre-pandemic. Texas, Florida, Delaware, New York, Ohio, and Missouri, have all been identified as good candidates for implementation and we hope that, like the Nike thing, just do it. That’s all it takes. The technology is there and the cost should not be that great.

And, in fact, it should frankly be less because it’s going to save all around on Federal Express charges or somebody physically going to the office to have it apostilled – the time, the effort, and the like. That this is actually a problem that has a solution that does not require legislative activity; just a bit of time to implement the electronic e-APP and the E-Register, and a bit of money to purchase a license for the software, which has already been developed by providers. And frankly, this could serve as a source of revenue for the state as a convenience that could possibly generate more funds than the current physical paper version.

So, for example, in Massachusetts, the cost of an actual paper apostille is only $6.00, but you add in parking, the cost to send a paralegal over, and, in the current situation, it’s actually much more expensive than if you could just go online and do it.

Gerard: Well, on behalf of ACTEC, Leigh, I very much think that you deserve a great deal of credit for taking on the initiative in your role in the international estate planning area to bring this process about and bring it to everyone’s attention. What more can we do to get the word out to make this happen?

How do we get the word out to make this happen?

Leigh: Well, thank you, Gerard. When you were the State Chair, and Committee Chair, your help and support really meant a lot. And then, Ann Burns wrote a letter of support when she was ACTEC President, and then Robert Goldman did also. And all of that is very, very helpful, but we can write to the Secretaries of State encouraging immediate implementation and hoping that the momentum will build and the electronic apostille and electronic register will soon be available for everybody in all states.

So, thank you so much Gerard, both for your support and for ACTEC in helping support this initiative. And for those who work in the international arena, as I do, I can just affirm that we use apostilles all the time, constantly. And so, having it, taking advantage of technology instead of being stuck in the dark ages would really advance and help international practitioners and their clients alike. So, thank you for this opportunity to share this dialogue, Gerard. I really appreciate it.

Gerard: Oh, thank you very much for all of your efforts in educating us today and in general on this field. I think it’s something that really does deserve sustained attention. So thank you, Leigh, for everything you’ve done.

Leigh: Thank you.

Toni Ann Kruse: Thank you both very much and to keep with our French theme merci beaucoup for all of your time, Leigh and Gerard, for this informative discussion. I really do – I agree that this is an important issue and I hope we can keep some focus on it. So, thank you for joining us.

Resources:  Apostille US

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