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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

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November 29, 2010

Just Say No Article #2

Assisting with Immigration issues
If you are not an immigration expert, don’t answer immigration questions and don’t advertise yourself as an immigration expert. However, notaries are allowed to notarize many types of immigration documents. Just don’t give advice.

Assisting with legal advice
If asked for legal advice, if you are not an attorney, please refrain from giving legal advice as it might constitute unauthorized practice of law. Drafting legal documents, i.e. documents to be used in court or submitted to a judge or attorney could constitute legal advice or service (unauthorized practice of law) in many states. Don’t even offer to recommened particular notary procedures for their document, as that also could constitute unauthorized practice of law.

Backdating
Putting a date on a document’s notary certificate section that is previous to the current date is considered backdating and is illegal. Don’t backdate. Many signing companies will ask you to backdate when they are in a pinch and will lose their lock on the borrower’s loan. That is their problem, not yours. If you backdate you could lose your commission if you get caught. It is a misdemeanor in many states to ask a notary to commit fraud, so you can report a company that asks you or coerces you into backdating.

Don’t make notarial recommendations
Customers always ask what type of notarization they should get. You are not allowed to tell them in many states. You can describe the attributes of the various types of notarizations and ask what the document custodian would like too. Just don’t make recommendations.

Letting your boss review your journal
Your boss can not inspect your journal on their own. However, if you are present, then its okay if your boss inspects the journal. The notary should not let the public see journal entries unrelated to their specific business. Its best to make a copy of the journal entry that blocks out other entries to protect the privacy of the others who you notarized. If not all of the notarizations are related to your boss, it would be better if you make a copy of the journal entry in question rather than letting the boss look at the whole journal while you are there.

Blanks?
Don’t notarize a document with blanks in it. The blanks must somehow be filled in or crossed out. Otherwise you must decline from notarizing that document.

Lock up your seal and journal
Not all states require a seal and journal, but these instruments are the exclusive property of the notary and must be kept under lock and key. Don’t let others use them or you can get in big trouble, and so can the person who used them.

Don’t notarize parts of documents
If you are handed page three of a long document, you can not notarize it as a separate entity. Documents must be in their complete form to be notarized. Don’t only notarize the last page of a document — the page that contains the certificate wording either.

Failure to emboss?
Its not required by law to emboss pages, but if you choose to emboss every page of every document you notarized, it becomes difficult to substitute pages of documents without getting caught. Embossers leave a raised seal that can not be photocopied, so you will be detering a lot of funny business using an embosser.

You might also like:

Notaries that fail and what they did wrong!

Everything you need to know about journals

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November 3, 2010

The Florida Notary issues and quirks

Florida Notary Issues and oddities

Understanding a document
A Florida notary public is NOT required to be able to read all documents being notarized by them, but the signer must be able to read the document. The document must either be in English, or a language the signer can read. This is differently worded from many other states. In California, the notary must be able to communicate directly with the signer, but does not need to understand the contents of the document, nor do the contents need to be in English.

Foreign language signers
The notary must be able to communicate directly with the signer without the help of an interpreter in California. So, if the signer brings their children along to help translate, the notary must decline the job unless direct communication is possible. But, in Florida, the statutes do not specify that the notary and signer must be able to directly communicate, but specify that the signer must have the document translated into a language they understand in order to qualify to get their signature acknowledged.

Verifying a VIN #.
Another unusual official act of a Florida notary is to be able to verify a VIN number on a vehicle. The maximum charge for this is $10 per notary act.

Drafting documents
Other states simple forbid notaries from engaging in legal advice, but don’t spell out exactly what legal advice could consist of. A notary public in Florida is expressly forbidden from drafting any type of document for a client — both legal documents and less formal documents. A legal document is often described of one that might be used in court or submitted to a judge or attorney. Additionally, a Florida notary must not fill in blank spaces in documents as that also constitutes unauthorized practice of law or legal advice in FL.

The Florida Notary Manual page 58 states that a Florida Notary should only sell legal forms and type up documents written by their customers.

Disabilities
A notary in Florida may sign on the behalf of a person with a disability if the disabled person requests. Nobody has ever mentioned any rule like this before on any of our forums.

Notarizing for minors
The state of Florida allows notaries to notarize for minors and should ideally document the minor’s age next to their signature.

Incompetency
A notary may not notarize for an individual who doesn’t seem capable of understanding the meaning of the document being notarized.

Marriages – I do!
Florida notaries may solemnize marriages if the couple provides a marriage certificate. ME, NH, and SC, plus one parish in LA are the only other states we have heard of that allow notaries to conduct marriages, but they need a special extra license in NH to the best of our knowledge. The notary may make up their own verbiage for the marriage, and then complete an official certificate for the marriage.

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October 14, 2010

Georgia non-attorney notary realities

Georgia Notary Public restrictions

Georgia notaries can NOT perform loan signings.
Its well known nationwide that a Georgia Notary Public who is a non-attorney notary can not perform a loan signing. Its considered legal advice by many to supervise a loan signing. My personal opinion is that if you don’t give any advice or explanations about the specifics of a loan, its not legal advice or the unauthorized practice of loan. However, so many notaries, don’t know their limits and start explaining what they shouldn’t explain, that it blurs the distinction of being legal advice or unauthorized practice of law. To me this is like saying that many individuals commit murder when walking down J street, therefor, we will convict you of murder simply for walking down J street even if you were minding your own business.

The loophole is that I’ve heard that a Georgia notary can notarize loan documents in Georgia for properties in other states.

Is the public better off?
The business reality is that attorneys in Georgia now control the loan signing business and are making great profits for themselves. It is unclear as to whether or not the public is better off or not having attorneys supervise signings. Maybe attorneys are able to be more helpful than a non-attorney notary during a signing which would make the public much better off. Another reality is that the signing fee charged by an attorney will most likely be $150-$250, plus whatever additional fees the signing agency would like to charge, while a non-attorney notary would charge $50-$150 in usual cases.

Georgia notaries still get work
The irony is that a Georgia notary public can still make a good part time income from doing what we call, “Regular notary work”. 123notary attracts lots of regular notary jobs which call for a notary, or in this case a Georgia notary public to drive to a location, and notarize one or two signatures. A notary can easily charge $25-$70 travel fee plus whatever a Georgia notary can legally charge per signature for notarizing.

123notary is selling advertising to Georgia notaries
We have many notaries in Georgia who renew their subscription with us every year who say they get regular business form their listing on 123notary.com. So, the restrictions on Georgia non-attorney notaries are not fatal! There is hope.

Please see our Georgia notary search page.

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