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April 25, 2018

Preparing to Sign a Last Will and Testament

Filed under: Technical & Legal — admin @ 11:11 am

Preparing to Sign a Last Will and Testament

One of the most important documents that a person signs during the course of a lifetime is his or her last will and testament. Of course, ensuring that a last will and testament is drafted properly is crucial. However, ensuring that a last will and testament is valid does not end when the instrument has been written. The manner in which the document is signed is vital to its ultimate validity.

State Laws Govern Drafting and Signing a Last Will and Testament

Each individual state has its own laws as they pertain to the drafting and signing of a last will and testament. With that said, many states utilize a derivation of what is known as the Uniform Probate Code. In other words, although there are some minor differences from one state to another when it comes to a will, there is a great deal of commonality in the laws about wills across the United States.

In order to make certain that a last will and testament is appropriately drafted and properly executed, a person does need to check the specific laws of the state in which the will is signed. This is the only way in which compliance with the law can be confirmed.

The Role of a Notary Public at a Will Signing

A notary public plays a pivotal role in the execution or signing of a last will and testament. One of the power bestowed upon a notary public is the ability to administer oaths and confirm information in certain situations. For example, at the time of the signing of a last will and testament, a notary public is charged with confirming a number of factors before a person signs the instrument.

First, a notary public is required to confirm that the person about to sign his or her last will and testament understands what is contained in the instrument. A notary public doesn’t quiz the signer on the contents of the instrument. Rather, a notary public requires the signer to affirm that he or she has read the instrument and understands its contents.

Second, a notary public must concern that based on his or her reading of a last will and testament that the instrument does what the signer intends. In other words, the signer must affirm that the last will and testament deals with matters associated with his or her estate in the manner in which he or she intents and desires.

Third, a notary must ascertain that the signer of a last will and testament is of sound mind and body at the time of the execution of the instrument.

Finally, when the person signing a last will and testament executes the document, a notary public verifies the signature and affixes the seal of his or her office to the instrument.

Witnesses at a Will Signing

The laws of all states mandate that witnesses be present at the execution of a last will and testament. The laws do differ as to how many witnesses must be on hand at the signing of a last will and testament.

The witnesses are present to confirm that the person executing a last will and testament understands what he or she is doing, that he or she is signing the will as a free and voluntary act, and that the signer is of sound mind and body.

The witnesses can end up playing a pivotal role should the day ever come that a last will and testament is being challenged in some manner. For example, the witnesses might be called upon to testify in court if a challenge is made to the will after the signer of the instrument dies. The witnesses might be called upon to testify that the signer was of sound mind and body when the last will and testament was executed.

At the time of the execution of a last will and testament, a notary ensures that the witnesses understand their roles. The witnesses sign the instrument, after the signer of the will itself completes that task. A notary typically verifies the signatures of the witnesses to the last will and testament as well.

Generally speaking, a last will and testament usually is signed in the office of the attorney that drafted the instrument in the first instance. More often than not, the attorney will have a notary public available from his or her own staff. There are rare situations in which a notary public is called in from the outside to witness and notarize the signing of a last will and testament.

 
Jessica Kane is a professional blogger who focuses on personal finance and other money matters. She currently writes for Checkworks.com, where you can get personal checks and business checks.

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April 17, 2018

How often do Notaries end up in court?

Filed under: Technical & Legal — Tags: — admin @ 10:24 am

Notaries can end up in court for a variety of reasons. If the person you notarized used a fake ID and you did not thumbprint them, you are likely to end up in court. If a borrower is suing the Lender and wants to sue all involved, you could end up in trouble. If you explain something poorly and the signer feels you are denying a legitimate request for service and they miss a deadline and experience a loss — you can end up in court.

Here are some ways to increase your likelihood of ending up in court:

1. Not keeping a journal
2. Doing hospital or elder notarizations (even if you are cautious)
3. Not taking journal thumbprints
4. Not explaining notary requirements clearly to irate customers who will lose big bucks if you refuse them service.
5. Doing a notarization for someone who happens to be in a court building at the time of notarization (sorry, bad example.)

So, bad communication and record keeping skills are the prime reason people get in legal trouble as a Notary.

One in seven full-time Notaries who we have spoken to (rough estimate) have ended up in court at least once. Having good records makes it a lot easier for judges and investigators. So, when we ask you to keep a journal, we are not doing that just to put another burden on you. It is for safety reasons — your safety and the public’s safety.

If someone copies your seal and impersonates you the notary and notarizes something, if you don’t have a journal of what you actually did in real life every day — then you will not be able to prove to a judge that you did not notarize that phony notarization and you can get in trouble or even end up in jail. So, if you don’t like jail, keep a journal. That is a far fetched worst case scenario, but you could get in bad trouble. So, keep a journal even if your state says you don’t have to because the FBI doesn’t play games and neither should you. And FBI is FEDERAL and they work in all states regardless of whether your state requires a journal.

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You might also like:

13 ways to get sued as a Notary
http://blog.123notary.com/?p=19614

10 risks to being a Mobile Notary Public
http://blog.123notary.com/?p=19459

he FBI is at your door and names you as a suspect!
http://blog.123notary.com/?p=20013

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April 14, 2018

Check to see if the signatures match

Filed under: Technical & Legal — admin @ 10:24 am

As a Notary, when you do an Acknowledgment, the signer does not need to sign in your presence (in most states). However, they need to appear before you and sign your journal. You must check to see if the signatures match the ID, journal and document. If they don’t, you have a big problem. Also, make sure the person looks like they do in their ID, and note down their ID information in your journal which of course you keep because you can get in trouble if you don’t keep one even in states that don’t require it.

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April 10, 2018

Document dates, signature dates, rescission dates and transaction dates

As a Notary, you will undoubtedly be confronted with a variety of dates that all need to be clearly defined in conversation so as not to confuse yourself or the other party. Let me sum these up.

Document Dates
The document date is NOT necessarily the date the document is notarized. It is merely an arbitrary date normally created by the document drafter that might reflect the date the document was drafted, supposed to be signed, supposed to be notarized, or some other arbitrary date. There is no rule for when a document date can be.

Signature Dates
The signature date of a document is the date it was signed. If you have two signers signing on different dates, you might have what 123notary calls “a double date.” There are multiple questions involved in a double date. One is how do you date the rescission document if the date you signed a document is more than one date. The other far more important question is — who pays?

Rescission Dates
The rescission date is based on a date that comes CALENDAR three days after the transaction (= signature date) not including Sundays or Federal holidays. If you have two signature dates, you might have two rescission dates, one per person. But, if there is only one rescission date, it probably is based on the last signature (complicated.)

Transaction Dates
This is more of a glossary type term or test term. The transaction date is the date when the transaction happened which is based on the date of the signature. I ask people what the synonym is for a signature date to see how much they read.

Medjool Dates
If you go to a signing for health conscious people or Saudi’s, after the signing, you might get yet another type of a date — a Medjool date. These dates are typically grown in the Middle East, but also in parts of Arizona near Yuma

Hot Dates Q&A
If you steal a document, would the date on the document be correctly defined as being a “hot date” since it was technically stolen?

Dates and Journal Entries
A good Notary does more than his/her state’s minimum requirements for journal entries. There is a field in your journal for the name and/or description of the document. A good journal also has an optional field for the document date. I suggest you pay attention and write in the document date as it helps to identify a particular document and distinguish it from a different document with the same name signed by the same person. Sometimes the document date is the only way to tell them apart.

Dates and Notary Appointments
I once went to a Notary appointment with a date. I left the date in the car and came out $30 richer. She complained that I left her in the car too long, which is good, because that date would expire at midnight.

Please also read our previous article on the same topic. Read more…

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Notary Public 101 Certificates!
http://blog.123notary.com/?p=19502

10 tight points on loose certificates
http://blog.123notary.com/?p=15449

Backdating from A to Z
http://blog.123notary.com/?p=2424

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April 5, 2018

The name on the ID vs. the Acknowledgment, Document, and Signature

Filed under: Technical & Legal — admin @ 11:08 pm

As a Notary, you will be confronted by a myriad of inconsistencies. Names on identifications don’t always match names on documents. We have discussed this multiple times in our John Smith examples where the name on the ID is shorter than the name on the document which in my examples is normally John W. Smith. However, I want to introduce the complexities of name variations in an organized way.

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RULE #1: The name on the ID must prove the name on the Acknowledgment
The name on the ID is not always identical or “matching” the name on the document. I do not like the term “matching” because it has multiple connotations and therefor is not clear. The name on the identification must PROVE the name on the Acknowledgment as a minimum.

Example
The name on the ID says John Smith.
The typed name on the document says John William Smith
The signature on document says John William Charles Smith
The name on the Acknowledgment cannot say more than John Smith otherwise you are notarizing someone whose name you cannot prove.

Whether or not your state approves you notarizing a signature that is longer or not matching the name on the identification is between you and your state. But, according to sensible practices, the main thing is what name you are Acknowledging the person as, because that is your job as a Notary. As a Notary, you have to prove the identity of the signer and certify that information in the form of a Notary certificate. What goes on the certificate must be true under the penalty of perjury in California and must be true in other states otherwise it could be considered fraudulent. In this example, you can prove the signer is John Smith, he over signed the document which the Lenders don’t usually mind, and you notarized him once again as John Smith — nothing more, nothing less.
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RULE #2: The typed name on the document ideally exactly matches the signature, but, if the Lender says it’s okay, an over signed version of the same name would suffice.

i.e. If the typed name says John William Smith, then the signature could be John William Charles Smith.
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RULE #3: The name on the Acknowledgment can be an exact match of the signature if provable by ID, or a partial match of the signature that is proven by the identification.

i.e. If the signature says John William Charles Smith, you can notarize the signature as that name if it that name variation is entirely provable based on the ID, or you can notarize him as John Smith as the ID proves that name.
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RULE #4: The typed name on the document is supposed to match the name on Title.

The recording agency has a particular name on title, and loan documents are supposed to match the name on title. Sometimes people change their name on title using Grant Deeds and Quit Claim Deeds and which form you use to change a name on title depends on what state you live and your individual situation, and I am not trained in these matters, (sorry.)
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Rule #5: Just because you are obeying sensible practices and the law doesn’t mean the Lender won’t get mad and fire you.

The Lender wants the name notarized based on how the name reads on the documents as a general rule. Usually times you can get away with notarizing a shorter version of the name for legal reasons. If you have a situation where you have a choice between breaking the law and pleasing the Lender, choose obeying the law. If you have a choice between pleasing the Lender and taking liberties identifying someone which is a wishy-washy point in the legal code in many states (look up your state’s requirements for proving someone’s name — many states only say that you have to check their ID, but not see if the names exactly match) then you have a judgement call.

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Summary of rules using fortune cookie English

1. Name on ACKNOWLEDGMENT must be proven by name on IDENTIFICATION

2. Name on ACKNOWLEDGMENT must be part or whole of name on SIGNATURE

3. Name on SIGNATURE can match exactly or be a longer variation of TYPED NAME on document.

4. TYPED NAME on document should MATCH name on TITLE

5. LENDERS want name on the Acknowledgment to match TYPED NAME on document, but this is not always legally possible.

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You might also like:

The ID says John Smith
http://blog.123notary.com/?p=19953

What’s your sign? A guide to spotting fake ID’s.
http://blog.123notary.com/?p=19638

Credible Witnesses – the ins and outs
http://blog.123notary.com/?p=19634

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April 2, 2018

Cross out and initial, or use a fresh form?

Filed under: Technical & Legal — admin @ 6:41 pm

Most Notaries like to cross out and initial changes in certificates. Keep in mind that these are legal documents affecting million dollar properties. Cross outs look like tampering. It is CLEANER to take a fresh acknowledgment form from your Notary bag, fill it out thoroughly including the additional information section with the name of the document, number of pages, etc., And then staple it on to the document. On the other hand, using a new form could change the recording fees for the loan which would affect the truthfulness of the information on the Closing Statement.

If there is a cross out for a name on a certificate that is a quite serious legal issue. It could lead to complications should you ever go to court. It is your right to decide to use a fresh acknowledgment form and staple it on the document even if the Lender doesn’t want it that way. Lenders sometimes prefer to use the original form because it is inscribed within the document. But, also because a new form will be charged extra money from the county recorder. Lenders sometimes lose loose acknowledgment forms which is yet another reason many Lenders prefer to fix the original.

As a Notary, you may be faced with the unpleasant reality that the Lender may have already filled out your Acknowledgment form, and with wrong information. If the form says you are in Orange County when you are in Seminole, you cannot notarize that form as is. So, what do you do and what are the consequences?

I cannot tell you what your state laws allow or require, I can only tell you how to handle forms in a prudent way.

Fix the Existing Form
If you are going to fix the existing Acknowledgment, just cross out the wrong information with a single line, write in the correct county, and the Notary initials. The borrowers can initial changes to documents, but should not initial changes to certificates unless your state says so in writing. Fixing the existing form has the advantage that there will not be any changes to the recording fee for the loan. If you start adding additional pieces of paper, that will change the information on the HUD or CD and open a can of worms which some Lenders don’t like. On the other hand it is cleaner to replace the form rather than to fix it as fixing it looks like potential tampering.

Replace the Form
To replace an Acknowledgment, just staple on a new Acknowledgment, fill it out, sign and seal. Please also fill out what is called the optional and additional information which is normally about the document such as number of pages, document date, etc.

Communication Errors
When I ask Notaries how to fix a wrong county on an acknowledgment, some of them tell me how to replace it. Fix and replace are not the same word, so please do not answer a different question from what I asked. Please also be aware of the benefits and costs of replacing the form rather than fixing it.

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The 30 point course – initialing
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The man who wouldn’t use his middle initial
http://blog.123notary.com/?p=4040

What is the cleanest way to rectify an error on a certificate?
http://blog.123notary.com/?p=20018

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The ID Says John Smith

Filed under: Technical & Legal — admin @ 10:56 am

Q. The name on the ID says John Smith, but the typed name in the document says John W Smith… Can you notarize the signature under these circumstances?

A. You can have him sign John Smith and notarize him as John Smith. Might not wash with the Lender but legal.

Other things you could do…
Ask for other ID. If they don’t have it, if your state allows credible witnesses, use them to identify the signer. You can always notarize the signer based on his name on the ID regardless of the typed name on the document. The Lender might not like that, but your main job is to please the law.

Example.
If
Or, have him sign John W Smith, but put only John Smith in the Acknowledgment. That way you are ONLY certifying the name he proved to you was really his.

For the most part, signers will have identifications that are thorough enough to use for purposes of notarization. However, it is possible that an ID will have a name that is either shorter, or that doesn’t match the name on the document. Notaries scramble the requirements for positive identification. There is the “you can have more than but not less than” rule. More than what? Less than what? This is a bad rule to learn because it gets scrambled more than not. Here are some basic principles.

1. You can always oversign (Lender principle)
This is a Lender or Title requirement, not a law. The law does not say anything about over signing in anything I have ever read. If the document says John Smith and the signer signs John W Smith, that might be okay with the Lender, but it might not be acceptable to notarize. Your job as a Notary is NOT to please Lenders, but to notarize people who you have positively identified. If the ID says John Smith then you can notarize the signer as John Smith prudently, but nothing longer than that.

2. The name on the document must be provable based on government issued photo identification.
I will not go over the particulars of an acceptable ID, and some of the particulars are state specific. As a general rule, a state issued photo ID card, driver license, passport or military ID are fine for a Notary to accept. If the ID says John William Smith and the document says John Smith, then you are fine, but if the ID name is shorter then you cannot prudently use it to identify the signer. If the ID says John Smith, but the signature on the document says John W Smith, you cannot prudently notarize that name even if the Lender says it’s okay. The Lender is not your boss, the laws of your state’s state notary division are, so obey the right entity, and stay out of jail.

3. You cannot use an AKA statement
A Signature Affidavit with AKA statement is not an acceptable primary or secondary ID. As a Notary you cannot use it to identify a signer ever. It is for the lender only.

If I ask you if it is prudent to notarize a signature that says John W Smith when the ID says John Smith, if you make me repeat myself, scramble the scenario, or quote some dumb rule that doesn’t apply in this situation such as point one in this article, you will not only get the question wrong, but get marked up for having poor communication skills. This is a yes or no question, please answer it accordingly.

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April 1, 2018

Scenarios: What is the cleanest way to rectify an error on a certificate?


Notary Certificates


Most Notaries like to cross out and initial changes in certificates. Keep in mind that these are legal documents affecting million dollar properties. Cross outs look like tampering. It is CLEANER to take a fresh acknowledgment form from your Notary bag, fill it out thoroughly including the additional information section with the name of the document, number of pages, etc., And then staple it on to the document.

To be prepared for this type of situation, please do the following:

1. Keep Notary certificate pads on your person
Buy Acknowledgment, Jurat, and Copy Certification forms from the NNA. These forms come in pads and fit in your notary bag or at least in your trunk. A good Notary carries these and uses them regularly.

2. Ask for preferences, not for advice
Know when to ask the Lender or Title company for their preference. Please remember that as a Notary, it is your exclusive jurisdiction to be the expert and sole authority as to how Notarizations should get done and how Notarizations do get done. However, if there are two legal ways to handle a situation such as fixing an error on a certificate (does not apply to Maryland as I have heard that you may not add a loose certificate there — look it up in the MD Notary Manual to be sure.) you can ask for a preference as to which legal way the Lender prefers. But, you must not ask a Lender if it is “okay” to do something in a Notary form, but only if they have an “issue” with it.

The way you think about asking Lenders questions matters as many Notaries think of Lenders as their authority and boss. As to completing the assignment, loan documents and shipping, they are your boss. For the actual Notary procedure, the Secretary of State Notary Division (or whatever they are called in your state) is your only authority and YOU are the authority over the Lender in this regard. You have the right to say no, and they do not have the right to boss you around about Notary issues, but only to voice preferences.

3. Recording fees & issues with adding forms
If you add a loose acknowledgment to a notarized document in a loan signing, that will change the recording fee which might be recorded on the CD, Closing Statement or HUD-1. You are opening a can of worms if you do that. However, in my opinion, the integrity of the notarization trumps any recording fee issues as you are not likely to end up in court because the recording fee went up by $10 or $50, but you might end up in court if someone thinks there is tampering due to initialing and changing information on a Notary certificate.

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January 30, 2018

The one Notary who used an embosser was the one notary that…

Filed under: Technical & Legal — Tags: , , , — admin @ 11:06 am

A week ago was the first time I ever talked to a Notary who used a secondary embossed seal. Notaries are required to use an ink seal for notarizations. However, many states will allow for a secondary non-inked embosser seal that leaves a raised impression in the paper you notarize.

The raised impression cannot be photocopied.
The raised impression is not easy to forge
The raised impression can go on each page of every document you notarized.

The purpose of the embosser is to deter people who want to swap pages in a document after it has been notarized which is tampering and illegal. Some Notaries emboss several pages all together, while other Notaries emboss pages one by one. There is always a danger the document custodian could swap pages with another document you notarized so it might make sense to emboss a different part of the page each time you emboss. Not sure how to coordinate that. Would you emboss on the left of the page on Mondays or use a random way to figure out which part of the page to emboss.

The irony is that someone did swap a page on a Deed embossed by this Notary. One of the people in the transcation contacted an Attorney since the dollar amount on his copy was different. The Notary had to appear in court, however, since the swapped page was not embossed, the lack of embossing was another layer of evidence used to nail the culprit two or more times over.

The one Notary in the East Coast who uses an embosser to deter page swapping was the one Notary that page swapping happened to in my experience talking to tens of thousands of Notaries. How ironic. I never would have guessed. I guess the Notaries who aim to catch frauds are the ones who karmically do. Another Notary in California routinely catches identity thieves by handing over thumbprint to the FBI. I guess she is tuned in to catching really really bad guys too.

Maybe one day you will catch a bad guy, but it won’t happen unless you take precautions such as keeping a good journal with thumbprints, full names of documents, document dates, other info about the documents, use an embosser, and the list goes on.

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Do you use a Notary embosser?
http://blog.123notary.com/?p=15126

10 risks of being a Notary Public
http://blog.123notary.com/?p=19459

10 ways female Notaries can protect themselves
http://blog.123notary.com/?p=19196

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January 29, 2018

Journal abbreviation keys

Filed under: Journals,Technical & Legal — admin @ 12:50 am

Many people take the easy way out with their journal. Journal keeping is seen as just an arduous task with no higher meaning. Many people feel that they can do a shoddy job doing their journal since it is not required in their state. However, if you are in front of a judge you need a clearly filled out journal whether your state requires it or not.

Many Notaries use the check box journal. I recommend against this. The check box journal says, “E&O” as one of the names of a document. If the real document says, “Errors and Omissions Compliance Agreement” that is a completely different document. E&O is an abbreviateion for the first three words, but what about the last two words? Don’t take liberties.

Then there are other Notaries who just write, “10 Grant Deeds.” If you are ever in court, you need to know which Grant Deed is in question and if you really notarized it. Keeping escrow numbers, names of parties involved and addresses helps to narrow it down.

DOT could be a good abbreviation for Deed of Trust. However, if you are in court years later what will the judge say? What if you have bad handwriting and use abbreviations?

My philosophy is to keep an abbreviation key in the inner cover of each journal you use. I had 70 journals in my career so I could have a lot of keys. You can have a key that says:

DOT = Deed of Trust
AFF = Affidavit
E&O Comp Agree = Errors & Omissions Compliance Agreement.
Corr Agree = Correction Agreement.

This way you have a system that is documented just in case.
Or, just write the entire name of the document out. Or you could only abbreviate Deeds of Trust since they are so common and not abbreviate the others just to keep reading the journal more straight forward.

The worst thing you can do is to write, “Loan Docs.” When you put the names of documents in your journal, each document is legally separate, and the fact they are part of a package does not make them legally all have the title, “Loan Documents.” Each document has a name that must be entered in your journal if you notarize it.

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