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January 28, 2019

Can a Notary Act as a Witness?

Filed under: Technical & Legal — Tags: can a notary act as a witness?, can a notary be a witness, Witnessing a will, Witnessing as an official notary act — admin @ 3:36 am

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

Comments (3)

November 13, 2011

Can a notary witness a will or notarize one?

Can a notary act as a witness to a will — Can a notary notarize a will?

This is a very difficult topic to write about because notary law differs from state to state, and notary laws change over time as well in particular states. As a general rule, a notary public is discouraged from notarizing signatures on any will. If you are a New York Notary Public, you should probably avoid notarizing signatures on Wills under any circumstance since standards for what constitutes unauthorized practice of law in New York State for a New York Notary Public are more stringent than many other states. I heard that notarizing a Will as a New York Notary might be considered practicing law. However, in many states, a notary can notarize signatures on a will — even though it would be meaningless. Utah notaries are encouraged to notarize signatures on Wills if asked to since it is illegal to turn down any lawful request for a notarization. But, what about acting as a witness?

A notary can act as a witness, but in their capacity as an individual.
Unless your state prohibits a notary from being a witness ( have never heard of such a restriction, but it could exist), a notary can be a witness. A Delaware Notary Public can act as a witness as an official Delaware notary act and charge a prescribed maximum notary fee. However, in other states, a notary public may act as a witness, but in their capacity as an individual — or at least it would not be done as an official notary act recognized by their state. On the other hand, the notary acting as a witness can also indicate that they are a commissioned notary in their state which adds credibility. Notaries are screened before being commissioned in their respective state which makes them perhaps more credible than an average citizen (you would think).

Unauthorized practice of law — what does this mean?
I am not an attorney, and can not give any meaningful tutorials on what unauthorized practice of law constitutes. As a non-attorney notary, you should avoid giving any type of advice about what type of notarization to get, what type of legal paperwork to get, or how to fill it out. You should not draft legal documents in any state (documents to be used in court or submitted to a judge or used in conjunction with any court case). You might be able to assist in drafting non-legal documents in many states that are to be notarized such as simple affidavits, etc. A Florida notary public is strongly advised against helping drafting any type of documents since laws in their state are more strict about what type of advice a notary may give. In short, each state has a different idea of what “UPL” means. To play it safe, please read up on what your state notary laws are, and don’t draft legal documents, and don’t give advice on legal matters.

How many witnesses do you need for a Will?
It is standard in California, New York, Ohio, Arizona, and most other states for a Will to require two witness signatures. I read on findlaw.com that Vermont requires three witnesses to sign a Will. Witnesses must be 18 years of age or older in any state. A notary can be one of those witnesses.

How do you document witnesses?
It is not a crime for a notary public to notarize the signatures of witnesses on a will, although it is improper to notarize the signature of the principal. It is always helpful for the witnesses to print their name, give their address and a phone number as documentation. You never know when they might need to be contacted. By having witnesses’ signatures notarized, the notary has a record of the identification of the witnesses, and a prudent notary would also record their adress and maybe even their contact information.

What is it like to act as a witness to a will?
I have done this many times. It is a very boring, but traditional formal proceeding. It is common to have an attorney present, a few neighbors or friends, and perhaps even a bottle of wine (for after the signing). Everyone commonly gathers around the dining room table. Once everyone is there, then the attorney might give a quick speech, and then the principal signer signs, and then the witnesses sign in their appointed places. Afterwards, there is lots of chatting generally. Or, you might meet in the conference room of a law office and do it there (less fun). Many people consider a notary to be a better quality witness since they deal with signing documents as a profession and they take signatures more seriously, so I got many gigs as a witness. I took it very seriously and watched very intently every time a signer signed!

You might also like:

Information about Credible Witnesses

Can a notary be a witness?

New York Notary search results

Comments (5)

October 22, 2011

Can a notary be a witness?

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Q&A for notary witness questions

Many people come to our blog to learn more about witness rules and credible witness requirements in various states. We can not speak for all 50 states, but we will try to provide some good leads that can help you get your questions answered.
This blog entry will serve as a quick Q&A for some of the more common nationwide and state-specific notary witness questions.

How many credible witnesses are necessary?
Roughly 90% of states allow credible witnesses. Please read: http://www.123notary.com/forum/topic.asp?TOPIC_ID=4047. This forum post to learn the credible witness requirements for your state. In California and Florida, if the notary knows the witness, then only one is necessary. However if the notary does not know the credible identifying witness, then two would be necessary. In either case, the credible witness must provide identification, and swear under oath to the identify of the signer. In many cases, the credible identifying witness only knows the signer by some informal name and knows them as a neighbor or co-worker on a very informal basis.

Can a notary act as a witness? Can a notary be a witness?
Unless your state law indicates otherwise, then yes, a notary can act as a witness. Please keep in mind that certain notary acts require the notary to witness the signature of the signer (jurats), while other notary acts do not (such as acknowledgements). A notary can act as a witness for a signature that they notarized, or for a signature that they did not notarize. It is an official notary act to be a witness in Delaware and Washington State as well. It is common for people to ask a notary to witness signatures, since notaries are trusted state officials who would be a good impartial and responsible witness.

How to notarize a document when you have credible witnesses?
The credible witness(es) must sign the notary journal (rules vary state by state), and must produce identification as well. The credible identifying witnesses must swear under oath as to the identity of the document signer.The credible witnesses do not actually sign any documents, they just sign the journal and help to identify the signers.

Can a notary notarize with no ID and 2 credible witnesses?
Yes, if the notarization takes place in California, Missouri, Florida, Georgia, or Tennessee.

Nevada credible witnesses – is there a special form?
Nevada requires a special acknowledgment form for credible witnesses.

Can a notary be a witness to a Will? Can a notary witness a Will?
Yes, a notary can be a witness to a will. Some states allow witnessing as an official notary act as well. If it is not an official act, then the notary can charge any fee they like to serve as a witness. Please keep in mind that notaries are discouraged from notarizing signatures on Wills without written instructions from an attorney.

Can a notary sign as a witness in Maryland? Can a notary be a witness in Maryland?
A notary can sign as a witness in Maryland, but it is not an official notary act in that state.

Can a notary sign as a witness in Utah? Can a notary be a witness in Utah?
Yes, a notary can be a witness in Utah.

Can a notary be a witness in Texas?
Yes, a notary can be a witness in Texas.

Can a notary be a witness in New Jersey?
Yes, a notary can be a witness in New Jersey.

Can a notary be a witness in Pennsylvania?
Yes, a notary can be a witness in Pennsylvania, although it is not an official notary act.

What are credible witness statutes?
Credible witness statutes and rules vary from state to state. We have a forum post that covers many states rules about how many credible witnesses you need.

Doesn’t a notary have to witness you signing in person?
This depends on the type of notary act. For Jurats — yes… for Acknowledgments — no. In either case, the signer must sign the notary journal or notary record book if that is required in your state.

If you live on the border of 2 states, are you permitted to witness signings in both states?
Since witnessing is not an official notary act except in Delaware and in New Hampshire (as far as we know), a notary can be a witness anywhere, in any state or country.

Can a notary charge for a witness signature? Can a notary charge to be a witness?
Since this activity is not an official notary act except in Delaware, the notary can charge whatever the client will agree to pay. No state government regulates how much a witness can charge.

Can I be a notary and a witness?
Sure!

What is a notary credible witness acknowledgment?
To the best of our knowledge, only Nevada requires a special acknolwedgment for credible witnesses. However, credible witnesses may be used in most states to identify a signer for an acknolwedged signature.

What is a subscribing witness?
A subscribing witness could be someone who witnesses a principal sign in a proof of execution — OR, it could be a person who witnesses an elderly person do a signature by X signing.

You might also like:

Power of Attorney information

Can a notary witness a will or notarize one?

California Credible Witness Requirements

Oath of two credible witnesses

Comments (3)

Notary Blog – Signing Tips, Marketing Tips, General Notary Advice – 123notary.com Control Panel

January 28, 2019

Can a Notary Act as a Witness?

November 13, 2011

Can a notary witness a will or notarize one?

October 22, 2011

Can a notary be a witness?