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February 3, 2019

Credible Witness Notary — information & resources

Here are some links that explain the credible witness process in the Notary profession. Please keep in mind that each state has a different procedure and rules for credible witnesses and a few states don’t allow this practice at all. Please also keep in mind that a Credible Witness for Notary work is also called a Credible identifying witness as their function is to identify signers who lack proper identification.

California Credible Witness Information
There is a long list of things a California Credible Witness must swear to that go above and beyond the identity of the signer. The credible witness must also swear that the signer cannot easily obtain identification. Here are what the CW must swear to:

1. The individual appearing before the notary public as the signer of the document is the person named in the document;

2. The credible witness personally knows the signer;

3. The credible witness reasonably believes that the circumstances of the signer are such that it would be very difficult or impossible for the signer to obtain another form of identification;

4. The signer does not possess any of the identification documents authorized by law to establish the signer’s identity; and general information

5. The credible witness does not have a financial interest and is not named in the document signed.

Please note that the credible witness does not have to swear that the signer has a particular legal name. Shouldn’t that be the whole point of the Oath?

Please refer to page eight and nine of the 2018 California Notary Public Handbook for details.
http://notary.cdn.sos.ca.gov/forms/notary-handbook-2018.pdf

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Information & Resources

Credible witnesses from A to Z
http://blog.123notary.com/?p=452

Glossary Entry — Credible Witness
http://www.123notary.com/glossary/?credible-witness

Which states allow credible witnesses?
http://www.123notary.com/forum/topic.asp?TOPIC_ID=4047

Credible Witnesses — the process explained
http://blog.123notary.com/?p=16695

NNA’s guide to credible witnesses
https://www.nationalnotary.org/notary-bulletin/blog/2015/10/notary-challenge-how-handle-credible-witness

NotaryClasses.com guide to credible witnesses
https://www.notaryclasses.com/tutorials/homestudy/56.aspx

Can a notary act as a witness?
http://blog.123notary.com/?p=21359

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California Notary Oath of credible witness

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January 28, 2019

Can a Notary Act as a Witness?

Can a Notary act as a witness? Yes.
Can a notary be a witness? Yes.

However, there are many types if witnessing that a Notary could engage in.

1. Witnessing an Acknowledged signature
A notary could witness a signature as part of an Acknowledgment in certain states. Most states do not require the Notary to watch the signer sign for an Acknowledged signature, but six states do.

2. Witnessing as an official notary act
Witnessing is an official notarial act in a handful of states. Notaries can get paid a fixed maximum state mandated notary fee for witnessing a signature. Delaware Notary statutes allow this as an official act, other states do not.

3. Witnessing in their individual capacity
Witnessing a document signing as an unofficial act can be done by any person in sound mind who is eighteen years of age or older. However, many prefer to hire a Notary Public to do this in their capacity as an individual simply because people prefer to have a Notary deal with issues relating to signing documents. How much can a notary charge for being a witness? There is no set charge except perhaps in Delaware.

4. Witnessing a Will
Wills can be notarized, however, most Notaries are advised that it is not proper to notarize a will without written instructions from an Attorney. Living Wills are a different story as those function more similarly to a specialized medical power of attorney. Many people like to have a Notary be one of the two witnesses to a will signing. In Vermont I heard that they require three witnesses. For mafia signings regardless of what state it takes place in, they normally prefer — “no witnesses.”

5. Credible Witnesses / Credible Identifying Witnesses
A Notary cannot act as a credible witness if they are notarizing a document for someone. However, they can use the testimonies of one or two credible witnesses depending on the situation in most states. You can learn more about credible witnesses on our blog.

6. What is a subscribing witness?
Notaries typically use subscribing witnesses for Proof of Execution signings and Signature by X or Signature by Mark signings where the signer cannot sign their name. Subscribing means signing, so a subscribing witness is one who witnesses a person signing their name.

7. Which Notary act requires witnessing?
A Jurat requires the signer to sign in the physical presence of the Notary Public as well as swearing or affirming under Oath to the truthfulness of the content of the document in the presence of the Notary. The Notary Public should be watching when the signature is made.

8. Witnessing crimes
It is possible that a Notary might witness a crime during their work hours. It is possible they might observe someone being forced to sign under duress, or even someone being kidnapped. Notaries are often asked to go to jails to notarize criminals, but the criminal would not be in the act of a crime in jail — probably. Signers might ask the notary to falsify a date, and asking the notary to engage in fraud is a crime in itself in many states.

You might also like:

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

Subscribing witnesses explained
http://blog.123notary.com/?p=16707

Witnessing the intake forms in Notary Heaven
http://blog.123notary.com/?p=8832

Types of witnesses in the Notary profession
http://blog.123notary.com/?p=5664

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January 27, 2019

Witnessing a Will

Filed under: Technical & Legal — Tags: , — admin @ 3:53 am

It is traditional procedure for Will signings to be witnessed. Normally, there would be two witnesses over the age of eighteen to witness the signing of a Will. In Vermont, there would need to be three witnesses. It is not a bad idea, but not necessary to have a Notary Public be one of the witnesses.

A Notary Public does not normally notarized the principal’s signature on a Will unless an Attorney asks them to in writing. However, it is not a bad idea for a Notary Public to notarized the signatures of the witnesses at a Will signing for a Last Will and Testament.

It is very critical for a will to be signed using the same name variation that is printed below the signature line. It is also critical that the signature is dated appropriately. The signature must be at the end or bottom of the document. Witnesses must not only sign, but also print their name very clearly and legibly below their signatures and the date.

It is a good practice for the witnesses to inscribe (write) their address and perhaps phone number as well should they need to be contacted by investigators at any time for any reason. The witnesses should not only see the principal signer sign, but should also witness each other sign.

When choosing witnesses, be advised that they might have to be questioned or even appear in court after the fact. The closer their know you the better. However, the fact that they know you and/or watched you sign is technically enough. The witnesses should not have a beneficial interest or financial interest in the signing of the Will. So, it is better to have people know you, but not people who are inheriting money, rights or property from you as witnesses to the signing.

Once the will is signed, you should make photocopies, and can consider having your Attorney, executors, and/or document custodians have possession of the copies. Please consult your Attorney to make sure you have the correct party having possession of your will. And if amendments need to be made, the document custodian will need to have the revised edition. The actual documents should be saved in a safe, dry place — perhaps a file drawer or lock box.

You might also like:

Witnessing a Will
https://www.netlawman.co.uk/ia/sign-will

Witnessing a Will according to LegalZoom
https://info.legalzoom.com/rules-witnessing-20722.html

Preparing to sign a last will and testament
http://blog.123notary.com/?p=19967

Living Will vs. Medical Power of Attorney
http://blog.123notary.com/?p=18966

Can a Notary witness a will or notarize one?
http://blog.123notary.com/?p=1525

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November 6, 2018

Compilation of posts about credible witnesses

Filed under: Compilations,Credible Witnesses — Tags: , — admin @ 10:49 am

Here are some helpful posts about credible witnesses. Not all states allow credible witnesses, and the rules are state specific.

Credible Witnesses from A to Z
http://blog.123notary.com/?p=452

Notary Public 101 (covers many Notary issues, but not Credible Witnesses.)
http://blog.123notary.com/?p=19493

Credible Witnesses — the process explained
http://blog.123notary.com/?p=16695

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

Credible Witnesses
http://blog.123notary.com/?p=18911

See our string on Credible Witnesses
http://blog.123notary.com/?tag=credible-witness

Credible Witness protection plan
http://blog.123notary.com/?p=18831

Where do credible witnesses sign the journal book?
http://blog.123notary.com/?p=2508

How much can a Notary charge for a credible witness?
http://blog.123notary.com/?p=2700

Credible Witness requirements
http://blog.123notary.com/?p=2464

What is a Credible Witness notarization?
http://blog.123notary.com/?p=2408

Oath of two Credible Witnesses
http://blog.123notary.com/?p=2405

Types of witnesses in the Notary profession
http://blog.123notary.com/?p=5664

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January 16, 2018

Credible Witnesses, the ins and the outs.

Not all states allow credible witnesses, and some states like California have odd rules for credible witnesses. I also have opinions about credible witnesses as I used them frequently.

Some states that allow credible witnesses require only one witness. One that knows both the signer and the Notary.

Some states don’t allow credible witnesses at all.

While other states allow the use of two credible witnesses who both know the signer but do not know the Notary. Or one credible witness who knows both.

The problem is how credible witnesses are used. Credible witnesses are normally used when the Notary gets to a Notary appointment and the signer has no ID. Or sometimes the ID has the wrong name. Hurry, get a credible witness or the notarization is over! So, you grab a neighbor, or coworker who swears they know you well.

The problem is that knowing you as a neighbor is very different than knowing you well enough to have your middle name(s) memorized.

You could test a credible witness out and ask, “What is this man’s middle name?” If they don’t know it, I would not think of them as a credible or reliable source of information. The law might allow you to use them but does it really make sense. They are just going along with whatever middle name the signer claims to be.

Or, you could use your judgement while picking credible witnesses. Personally, I feel that a family member or spouse is a quality choice for a credible witness as family members will know the other family members middle names. But, my friends who I’ve known for 30 years I do not know their middle names — sorry to say.

Additionally, in California, the credible witness has to swear that the signer cannot easily obtain an identification acceptable to the state of California such as a driver license, passport, etc. So, if the signer has an ID, but the names do not match, it would be bending the law to use a credible witness in that situation. If you don’t believe me, read page 12 of the 2017 California Notary Handbook.

All in all, I would say that using credible witnesses as a way to get out of a bind is something that should only be done if the credible witness really knows the person intimately and knows their middle names intimately off the top of their head. Otherwise you are just finding loopholes. And God forbid if you don’t take journal thumbprints you are asking for a court case and an FBI investigation! Be cautious as a Notary. It is easy to get in trouble and big trouble!

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You might also like:

Credible witnesses – the process explained
http://blog.123notary.com/?p=16695

Where do credible witnesses sign the notary journal book?
http://blog.123notary.com/?p=2508

Credible Witnesses from A to Z
http://blog.123notary.com/?p=452

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October 1, 2017

Notary also as a witness

Filed under: Ken Edelstein — admin @ 12:15 am

Notary as Also a Witness
Despite the popular expression, this Old Dog is learning new tricks. But first, a little background as to how I “used to” handle this issue. When I am able to review in advance the docs (edoc) I always would scan to see if there was a witness requirement. If so, I would ask the entity that assigned the job to me if there really was a requirement for one or more witnesses. Often the response was that x state did not require them and to just ignore that area. Other times I am told there indeed needs to be two witnesses and that I am permitted to be one of them.

I looked up this issue on NNA – https://www.nationalnotary.org/notary-bulletin/blog/2014/12/can-notary-serve-as-witness and the issue becomes a bit murky (at least to me). It seems that some states allow the notary to also be a witness but at least one (probably more) do not. I must assume the directives I receive from “higher up” take the local requirements (where the document will be used) into consideration. Now I’m not so sure that I should be taking “advice” from them.

I’m firmly of the belief that a document must “stand by itself”. Here in NY we have a prohibition against notaries notarizing the signature of the person who the will is for. I have had attorneys tell me they will be “on the other end of the phone – supervising the process”. But, many years from now, it’s only the Will itself in the courtroom. There is no record of the lawyer involvement. Thus I do not notarize any Wills.
The document currently under consideration is a Durable Power of Attorney. I have been asked by the private party client to be one of the witnesses. I replied:

The major gifts rider calls for 2 witnesses.
As the appropriateness of the notary also being one of the witnesses varies with the jurisdiction when the document is being used:
I decline to be one of the witnesses.
I suggest persons without any possible financial interest be selected for this function.

This issue is similar to the black vs blue ink issue. NY State mandates all notary signatures to be in black ink. However some counties in Florida require all signatures to be in blue ink. What to do? Well, blue will allow the deed/mortgage to be filed; black will comply with my license law. No, I’m not going to, on this issue say what I do; but I do consider that it’s pointless to partake in a notarization with rejection a great possibility.

Back to the Notary as also a witness. The POA before me can be used anywhere; I certainly don’t know where it will be used. Thus I decline to be both a Notary and a Witness on the same document. I know this creates a greater burden on the client. But, consider what might befall the Notary. If the POA is rejected, I might become the defendant in litigation where money was lost due to the “there” conclusion of improper processing. Would my E&O cover that? I don’t want to find out.
I doubt the wrath of State Department will land on me for using a very dark “blue” pen. I have often spoken to other NY notaries and many use blue ink so it “stands out” and does not appear to be a photocopy! That might have been a justification prior to the widespread use of color copiers. Also, signing as a Witness, with the greater possibility of complete rejection seems a greater risk.

Now my path is going to be the safest one. I will no longer sign anything as both a Witness and Notary. Sure, I will probably lose an assignment or perhaps a few. It’s a risk vs reward issue. The reward is a routine notary fee; the risk is a summons that might incorporate a rather high dollar exposure. By analogy from my flight training instructor: There are Old Pilots, and there are Bold Pilots. However, there are no Old Bold Pilots.

Wondering if I’m just “Chicken”? I leave a trail of feathers behind me wherever I go.

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July 12, 2016

Subscribing Witnesses Explained

There are TWO types of subscribing witnesses.

1. The person who appears before a Notary on behalf of someone being notarized with a Proof of Execution is called a subscribing witness or executing witness. The actual signer cannot appear before a Notary Public, so a witness is used to sign on the principal’s behalf and swear. The basic idea is that the subscribing witness witnessed the principal sign the document.

2. A person who witnesses a disabled person who is signing by X in a document is also called a subscribing witness.

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As a Notary Public, you may come into a situation where the signer is not able to sign. Most Notaries are not trained in how to handle such situations. If you do hospital notarizations you will deal with this situation a lot. Some signers cannot move their arms properly. Others cannot sign their name. If you can get them to sign an X in your journal and an X in the signature section of the document with two subscribing witnesses watching. You are in luck.

You need to have the subscribing witnesses sign your journal and input their drivers license info as well. Additionally, the subscribing witnesses sign the first and last name of the signer on the document which sounds like forgery, but many states allow this. Check your state notary handbook to see if this procedure is legal in your state.

Signature by X from A to Z
http://blog.123notary.com/?p=203

Subscribing Witness Glossary Definition
http://www.123notary.com/glossary/?subscribing-witness

What is Signature by X or Signature by Mark
http://blog.123notary.com/?p=2278

Types of witnesses in the notary profession
http://blog.123notary.com/?p=5664

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July 5, 2016

Credible Witnesses — The Process Explained

What is the process for using credible witnesses? First of all, not all states allow the use of credible witnesses.

Which states allow credible witnesses?
http://www.123notary.com/forum/topic.asp?TOPIC_ID=4047

One Witness or Two?
Some states will allow the use of one credible witness that knows the Notary and also knows the signer. Other states require the use of two credible witnesses. You need to know your state law to know what your state allows.

Knowing the Signer
The next question is, how well does a credible witness need to know a signer in order to swear under Oath that they know that person as a particular name? Most credible witnesses know the person as Joe, and have no clue what the last name is. They are swearing under Oath to something they were verbally told at the time of the notarization and they don’t really know Joe that well. In my opinion, credible witnesses should not be legal unless there is more scrutinizing to see how well they know the signer and how they learned the signer’s name before they were told at the signing what the Notary wants the signer’s name to be. Perhaps the Notary should ask the witness what the signer’s name is rather than telling them.

Journal Requirements
Credible witnesses must SIGN the notary journal, but NOT in the signature section. They must sign in the notes section. The Signer signs the journal in the signature section — get that straight! The Notary should write down the name, address, and driver license number of the credible witness as well.

Oaths
Finally, the Notary must administer an Oath to the credible witness(es) asking them to swear that the name of the signer is John Q Doe, etc.

Summary
The idea of having credible witnesses is the best thing that ever happened to the Notary profession. Using credible witnesses you can legally notarize a signer as Mickey Mouse or Ronald Reagan — and all without any form of identification. We recommend you take journal thumbprints of the signer for proof that the signer really is who they say they are just in case fraud is suspected. Most states do not require journal thumbprints, but take them anyway because you will get investigated one day — and perhaps by an investigator named Mickey Mouse.

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You might also like:

Where do credible witnesses sign the notary journal book?
http://blog.123notary.com/?p=2508

Credible Witnesses from A to Z
http://blog.123notary.com/?p=452

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April 20, 2013

Types of witnesses in the notary profession

Types of Witnesses in the Notary Profession

All the names of witnesses in the notary profession can be confusing if you don’t know your terminology. I am going to write a brief tutorial of various types of witnesses.

Witness
Anyone who witnesses a signature can be a witness. In general you should be 18 years of age or older to serve as a witness. A witness could engage in the act of witnessing a signature.

Credible Witness
Most states allow the use of Credible Witnesses to identify a signer. Some states will allow two Credible Witnesses who know the signer, but do NOT know the notary. Some states will allow one Credible Witness who knows the signer as well as the notary. Some states will allow one or two Credible Witnesses. Consult your state’s notary handbook for details.

Credible Identifying Witness
A more legal or technical term for a Credible Witness

Executing Witness
Also known as a Subscribing Witness that would be used in a Proof of Execution signing. Don’t make a mistake on this type of notarization or the joke is that you will be executed!

Subscribing Witness
A witness who watches someone else sign their name. The word “sign” can sometimes be synonomous with the word “subscribe”.

Subscribing Witness for a Signature by X signing
A Subscribing Witness is also the term for someone who watches and assists in a Signature by Mark or Signature by X signing.

Witness to a Jurat Signature
Notaries are required by law to witness signatures that correspond to Jurat notarizations. Signatures that are to be acknowledged on the other hand, do NOT need to be witnessed, and can be signed before (even years before) the signature is acknolwedged.

Witness to a Will
Being a witness to a Will is similar to any other type of witnessing, except for the fact that the witness might need to (or probably should) document the fact that they witnessed a will signing on the signature page of the Will. Wills are by definition, orten much more serious than any other type of document.

They are often more important even than Power of Attorney documents or Grant Deeds. Another reason why witnessing signatures on Wills is so critical is because the signer will probably be dead if and when the document is disputed. It is too late to drag someone into court to testify if they are deceased!

You might also like:

Compilation of posts about credible witnesses
http://blog.123notary.com/?p=20414

Can a notary witness a Will or notarize one?
http://blog.123notary.com/?p=1525

Credible Witnesses from A to Z
http://blog.123notary.com/?p=452

Identification requirements for being notarized
http://blog.123notary.com/?p=4299

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June 30, 2012

Can a notary public act as a witness?

Filed under: Witnessing — Tags: , , , — admin @ 12:13 pm

Can a notary public act as a witness? 

We already have a very thorough blog entry entitled:
 
Can a notary be a witness?
 
That contains all pertinent details regarding notary witness requirements and procedures.  To sum it up, a notary can act as a witness in any state in their capacity as an individual.   However, in Delaware, and Washington State, and perhaps a few other states, a notary can do witnessing as an official notary act, and charge an official fee set by the state for their services.
 
Is it better to hire a notary to be a witness?
Since notaries work exclusively with signers, signatures, documents, foms, certificates, etc., many people feel that notaries are better equipt to handle the (not so vigorous) responsibilities associated with being a witness.  Additionally, notaries have been screened by their state and are more likely to be honest upstanding citizens — or at least that is what many of us like to think.  The reality is that some notaries have no idea what they are doing, while others are very particular about witnessing, and documenting information in conjunction with witnessing. 
 
Why would it matter who you picked as a witness?
If someone witnesses a document signing or a Will signing, it doesn’t matter much who they are provided they are at least 18 years of age.  On the other hand, if the witness ever needs to be contacted after the fact, it is good if the witness has lived in the same place for a long time so you know where to reach them.  If your witness works for the circus or lives in a caravan and moves around a lot, you might never see them again. Having a witness who is a notary might help if they provide some extra documentation for you. Additionally, a mobile notary supposedly knows how to show up at the appointed place at the appointed time and might be more reliable with logistics.

You might also like:

Types of witnesses in the Notary profession
http://blog.123notary.com/?p=5664

Credible Witnesses from A to Z
http://blog.123notary.com/?p=452

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