Notary Law and Process For Document Preparers
As a document preparer, if you prepare a document and expect it to be legally executed by a knowledgeable and trained notary public in your state, consider that a vast majority of commissioned notaries public are not specifically educated as to their official duties.
However some, despite a thorough knowledge of appropriate notarial acts and their implications, notaries public are prohibited from choosing the correct act to execute. Any questions regarding the execution will be directed the document requestor. An inadequate, inaccurate, or missing notary certificate can create challenging circumstances for your client and the notary public alike.
What is a Notary Public and Why Use Them?
Perceptions vary wildly regarding the same Commissioned Officer Appointment of "Notary Public" from one jurisdiction to the next. Contrary to popular perceptions, notaries public do not "just sign and stamp" documents.
Notaries public certify to specific facts that occur during a document execution. To have the assurance that a specific signer is who they represent themselves to be, that the person signed the document, understands the transaction or attests to the facts of a statement, notaries public provide a vital function in execution of certain documents.
Any document presented with a notary's signature and seal that is void of any notarial certificate or wording is not a legally enforceable notarial act; creating a potential for limitless loss as there are no statutes of limitations on this type of neglect.
Enforceable Notary Process
(Where state statutes remain silent, legal and financial remedies are being sought against notaries public and their employers for failing to adhere to accepted best practices and common law requirements. The following are enforceable notary process in some states that maintain statutory silence on the matter.)
When preparing documents necessitating execution by a Notary Public, assuring the accuracy of the certificate and the particulars of its intent will ensure proper execution. Providing adequate page space for the notary's certification is similarly critical to proper executions.
Notaries Public must insure the following take place in every notarization:
- Personal appearance of the signer
- Positive identification of the signer by the notary
- Positive acknowledgement (or oath/affirmation) of the document particulars and/or transaction
- Assuring the signer completes any blank spaces within the document
- Proper affixation of name/title of the notary
- Proper affixation of universally recognized notarial "seal"
Personal Appearance
Notaries Public certify in every notarial act that the signer personally appeared. To request or require a notary public disregard this important requirement is requiring the notary to break the law. No jurisdictions may make provisions to ignore this critical notarial requirement.
Positive Identification
While statutes in jurisdictions maintain silence on proper identification, notaries public must follow common law guidelines for positive identification of all document signers. Recommended forms of identification are state or government issued ID cards or other verifiable identification that contains at least: photo, signature, identifying number, and/or a physical description of the signer.
The Acknowledgement
The most common notarial act performed across the country, the "acknowledgement" provides proof to the document receiver that the signer (1) appeared in person before the notary, (2) was positively identified by the notary and by what identification method, and (3) acknowledged they understand the transaction. Widely utilized as a loose certificate, but often included in the text of the document as presented by the signer. The acknowledgement certificate is the exclusive responsibility of the notary; is completed and signed by the notary and no other person.
Typical wording of this type of notarial act:
State of ______________)
) ss.
County of_____________)
On this, the _____ day of __________________, 20____, before me, __________________________, the undersigned officer, (1)personally appeared __________________________________________, (2)(known to me) or (proven by satisfactory evidence) or ((proved to me on the oath or affirmation of __________________________ who is personally known to me) or (proved by satisfactory evidence and stated to me that he/she/they know the document signer and are unaffected by the document)), to be the person(s) who's name(s) is/are subscribed to the within instrument, and (3)acknowledged to me that he/she/they executed the same for the purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
____________________________
Notary Public
Statutes are often silent on details of particulars (identification of a signer, verification the signer understands the transaction.) However, the notarial certificate as illustrated above is a notary's certification to the facts contained therein. For a notary public to ignore any of the certificate particulars is, in effect, committing perjury; a crime in most states punishable by the least of which is a revocation of a notary's commission.
Common Acknowledgement Mistakes
Notice slight variations from the above certificate on the following:
Example A.
State of ______________)
) ss.
County of_____________)
On this, the _____ day of __________________, 20____, personally appeared __________________________________________, before me, __________________________, the undersigned officer, and (known to me) or (proven by satisfactory evidence) or ((proved to me on the oath or affirmation of __________________________ who is personally known to me) or (proved by satisfactory evidence and stated to me that he/she/they know the document signer and are unaffected by the document)), to be the person(s) who's name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same for the purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
In Example A, the space provided to enter the name of the document signer precedes the space provided for the Notary Public to enter their own name. Countless documents have been returned to document recorders and/or requestors when the notary public executed the document upon themselves.
Example B.
State of Texas
) ss.
County of Bexar
On this, the _____ day of __________________, 20____, personally appeared __________________________________________, before me, __________________________, the undersigned officer, and (known to me) or (proven by satisfactory evidence) or ((proved to me on the oath or affirmation of __________________________ who is personally known to me) or (proved by satisfactory evidence and stated to me that he/she/they know the document signer and are unaffected by the document)), to be the person(s) who's name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same for the purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
In Example B the venue has been completed for a county in Texas. When this document travels outside that jurisdiction to be executed, the notary is required to correct the venue. The venue portion of the certificate is proof of the location where the document was executed; not where it is to be recorded or filed. Many notaries public are instructed to leave the venue as presented and not make necessary corrections. As the certificate is the notary's testimony to the facts of the execution, to ignore this venue section is committing perjury. For document preparers, it's always best to leave the venue particulars blank.
Example C.
State of New Jersey
) ss.
County of_____________)
On this, _________________________________ 20____, personally appeared __________________________________________, and (known to me) or (proven by satisfactory evidence) to be the person(s) who's name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same for the purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
Example C has a partially completed venue; void of any space within the certificate for the notary to enter their name, and contains a brief certification of notarial facts. This example is the most common short form certificate used for acknowledgements.
Errors on this certificate will include neglecting to complete the county of the venue, neglecting to complete the name of the document signer on the space provided, and/or the notary will complete their name where the document signer is required.
Example D.
Signed and Acknowledged by _____________________, on ___________________
____________________________
Notary Public
Example D leaves the document signer and the transaction at the most risk of all certificates illustrated above. No particulars are certified by the notary save for one detail: the signer acknowledges the transaction and they signed the document.
Properly attaching loose certificates
- Notarial certificates separate from the signature page of the full document are subject to separation from the original document; exposing the notary and the signer to losses if the certificate is executed fraudulently with another document.
Example E: The properly completed certificate on a sole female signer:
State of New Jersey
) ss.
County of Camden)
On this, 1st day of September 2010, personally appeared The_Document_Signer, and (known to me) or (proven by satisfactory evidence) to be the person(s) who's name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same for the purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
Signature of the Notary
Notary Public
Name of Notary Public
New Jersey Notary Public
My Commission Expires:
06/06/2016
Please see signature page of attached document, "Mr Smith Power of Attorney" dated September 1, 2010 for matched portion of split notary seal.
(Normally, certificates are completed in blue or black ink. Red used above to highlight where a notary will make certificate corrections.)
Note the completed venue county, complete month, and other additional indicators to the facts of the execution:
1. The signer personally appeared
2. The signer was identified by satisfactory evidence (ID Cards)
3. The signer is female
4. Acknowledged to the notary that she understood the transaction
5. Affixation of embossed seal (Not viewable in this verson. Please contact the author for additional information)
6. Affixation by mechanical means their name and commission expiration date
7. Security measures: description of executed document and partial notary seal. (Not viewable in this verson. Please contact the author for additional information)
The Jurat
Necessitating the administration of an oath to the document signer by the notary public, the Jurat is most commonly found with affidavits. Unlike the above acknowledgement, the entire affidavit document is the jurat with the venue identifier at the beginning of the document. Multiple variations to documents necessitating an oath (jurat) can be confusing for notaries public and document preparers alike.
Notaries Public who are presented with handwritten affidavits may attach a loose jurat certificate when the document signer requests such service.
Certificate wording for jurats vary greatly depending on the document preparer and the intent of the document.
Common loose jurat certificate wording most often utilized when the signer is instructed to write their own letter attesting to specific facts and then have it "notarized":
State of ______________)
) ss.
County of_____________)
On this, the _____ day of __________________, 20____, before me, __________________________, the undersigned officer, personally appeared __________________________________________, (known to me) or (proven by satisfactory evidence) or ((proved to me on the oath or affirmation of __________________________ who is personally known to me) or (proved by satisfactory evidence and stated to me that he/she/they know the document signer and are unaffected by the document)), to be the person(s) who's name(s) is/are subscribed to the within instrument, who signed the preceding or attached document in my presence and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his/her/their knowledge and belief.
In witness whereof, I hereunto set my hand and official seal.
____________________________
Notary Public
When the jurat is a part of the document whole, wording may vary from as comprehensive as the certificate above or any variation of the below:
State of ______________)
) ss.
County of_____________)
****** Contents of the affidavit or other sworn statement particulars listed ********
Subscribed and sworn before me on ________________, 20__.
____________________________
Notary Public
In sworn statements that are longer than a single page, document preparers should assure the notary public's signature is positioned on the same page as the document signer by providing the appropriate space in the document.
Documents are frequently returned for venue corrections that are not then initialed and dated by the notary executing the document. A thorough notary will often correct the certificate in multiple locations, certifying to the complete facts in their full notary seal and signature on the certificate. (See Example E on page 7.)
The Certificate "Hybrid"
Documents may have been prepared for a signer by an attorney and contain certificate wording similar to the below:
State of ______________)
) ss.
County of_____________)
****** Contents of the affidavit or other sworn statement particulars listed ********
Subscribed and sworn before me on ________________, 20__.
____________________________
Notary Public
This type of notarial certificate is considered a "hybrid" of both acknowledgement and jurat. The document preparer in this example may assume the notary public will use their judgment for the appropriate notarial act; whether administer an oath or not is generally dependent on the text of the foregoing document. However, for the notary to decide to administer an oath or not is again providing legal advice and is prohibited. Likewise, when making inquiry to the attorney drafting the above, the notary was instructed to "just sign and stamp" the document; not a legal notarial act.
Proper Document Completion by the Signer
Notaries are required to scan entire document packages and verify completeness. When blanks are located, signers are instructed to complete the information or indicate "n/a" if applicable. Notaries are prohibited from making these notations.
Affixation of the Notary's Signature and Seal
In addition to a notary's signature, most jurisdictions will require some form of legible indication of the notary's name and/or commission information. An embossed or stamped seal should also be utilized in jurisdictions that do not provide a statutory provision for such. Document receivers in other jurisdictions may inadvertently return a legally executed document that is missing a notarial seal/stamp believing it to be an improperly executed document. To avoid unnecessary delays in recordation or receipt of a document, encourage all notaries to utilize this universally recognized symbol of their authority.
When preparing a document requiring notarization, allow sufficient room for the notary public to affix their stamp/seal. See illustrations below for actual size recommendations.
Name of Notary Public
New Jersey Notary Public
My Commission Expires:
06/06/2016
Either version of the above are sufficient for New Jersey Statutes provided the imprint is legible enough to read the name of the notary public.
(GRAPHICS NOT AVAILABLE IN THIS VERSION. Please contact the author for details.)
Prohibitions
Government and business documents often present a challenge for a legal notarial execution. Notaries Public are prohibited from engaging in "unauthorized practice of law." A simple directive to a document signer as to what notarial act should be executed on any presented document by the notary public is tantamount to providing this prohibited legal advice. Document requestors are the only authority to which a notary public may refer when documents presented are void of proper notarial certificate wording. Frequently, document requestors are not familiar with notary law and process leading to faulty notarizations. Understanding the role and process of notaries public is critical for business and government document drafters.
The following are actual documents and/or instructions presented to a Notary Public for execution followed by the challenges explanation.
This example is presented as actual size, borders represent page and/or document section edge:
I authorize the transfer of the IRA assets in the manner described above and certify that all of the information provided by me is correct and may be relied upon by the Trustee or Custodian.
I understand that I am responsible for determining my eligibility to transfer within the limits set forth by tax laws, related regulations and plan agreements. Further I understand that a transfer from a SIMPLE IRA to a SIMPLE IRA on a more frequent basis than monthly from a Designated Financial Institution, or a change in my transfer request outside my election period, may result in costs or penalties. I understand that special rules apply to SIMPLE IRA to Traditional IRA transfers. I assume responsibility for any tax consequences or penalties that may apply to the transfer of these assets and I agree that the Trustee or Custodian shall in no way be held responsible.
Recipient
Notary Public/Signature Guarantee
This example (from an actual institution) contains the following notarial challenges:
1. No notarial certificate wording
2. No space for the notary to print their name/commission information
3. No space for the notary's seal imprint
This above example is not a legally executable notarial act as presented. Document drafters in this situation should consult their legal counsel in preparing an appropriate notarial certificate section; or determine if notarial execution is necessary for their business purposes.
Another example of a challenge for notaries public to avoid providing legal advice can be found on our State of New Jersey Motor Vehicles Commission checklist for a boat dealer:
A NOTARIZED STATEMENT ON YOUR LETTERHEAD STATING YOU WILL NOT
USE THE DEALER REGISTRATIONS FOR PLEASURE PURPOSES AND THAT YOU
ARE NOT BECOMING A DEALER TO AVOID PAYMENT OF SALES TAX. THE
STATEMENT MUST ALSO CONTAIN AN ESTIMATE OF HOW MANY NEW AND
USED BOATS YOU EXPECT TO SELL IN A YEAR.
A Notary Public can assume that NJMVC is requesting a jurat be attached to the letter on the business letterhead. The request that the signer must make a "statement" to specific facts would lead a notary to believe that an oath must be administered attesting to the facts of the statement. None of this is outlined in the above instructions. For a notary to attach a jurat certificate and administer the oath on their own would amount to providing legal advice. When making inquiry to the document requestor, the NJMVC is requiring the notary public to "just sign and stamp" the statement on the signers letterhead. This is not a valid notarial act.
