Posted by Hugh Nations Signing Agents of Austin on 5/30/08 7:37pm
Msg #249416

Query

Are there circumstances under which a notary public may simply sign his name and attach his seal in witnessing a signature, without any certification whatsoever?

Reply by jba/fl on 5/30/08 7:44pm
Msg #249417

Not in Florida, but

as noted earlier today, it is done without filling out not. cert., so I guess anything is poss. LOL

Reply by PAW on 5/30/08 7:58pm
Msg #249420

In Florida, there are a couple of circumstances

When completing the Solemnization of Marriage, or completing the VIN verification form, there is no "notary certificate" per se. These are the only two cases that I can think of.

Reply by GA/Atty on 5/30/08 8:05pm
Msg #249421

Yes - I think the notary's signature and seal implies that

the signer's identity was verified - particularly on a document where a notarization is required by law (such as a deed).

Reply by Hugh Nations Signing Agents of Austin on 5/30/08 11:09pm
Msg #249438

Re: Yes - I think the notary's signature and seal implies that

Would you be comfortable notarizing something in which you are verifying identity by implication? How can you imply that a notarization is a jurat, or an acknowledgement?

Reply by BrendaTx on 5/30/08 11:22pm
Msg #249440

Re: Yes - I think the notary's signature and seal implies th

I agree with you, Hugh.

Reply by WDMD on 5/31/08 6:25am
Msg #249455

Re: Yes - I think the notary's signature and seal implies th

In Maryland if a person wishes to execute a document with no certificate, a notary in Maryland should follow the instructions for Official Notary Witness. The procedure is spelled out in Part IV, paragraph 26 of the Maryland notary handbook.

In other words, a Maryland notary may affix their seal to a document without a certificate, to "witness" a signature.

Reply by BrendaTx on 5/31/08 7:20am
Msg #249456

Re: Yes - I think the notary's signature and seal implies th

Here's what the SoS says about the notary certificate:

11. MAY A NOTARY PUBLIC DETERMINE WHICH TYPE OF NOTARIAL CERTIFICATE SHOULD BE ATTACHED TO A DOCUMENT?

No. A Notary Public who is not an attorney should only complete a notarial certificate which is already on the document or type a certificate of the maker's choosing. If a notary public is brought a document without a certificate and decides which certificate to attach, that notary public would be "practicing law." However, a notary public is provided copies of sample notarial certificates with his or her notary commission. A person for whom a notarization is performed may choose the notarial certificate, and the notary may add such certificate to the document.

====

To my knowledge there is no provision for just applying the seal without a certificate. I'm always going to stamp or attach one of the signer's choice if one isn't available on the document.

Reply by BrendaTx on 5/31/08 7:20am
Msg #249457

Meant to say this applies to Texas. n/m

Reply by GA/Atty on 5/31/08 8:15am
Msg #249462

Yes - it would be an acknowledgement unless there is

something in the body of the document itself that indicates that it is a jurat (like an affidavit).

That's how it is in Georgia, anyway.

Reply by Hugh Nations Signing Agents of Austin on 5/31/08 8:30am
Msg #249464

Re: Yes - it would be an acknowledgement unless there is

Thanks, Colonel.

I am occasionally confronted with a Compliance Agreement that provides only for a notary signature and seal, with no cerrtification of any sort. I gather that somewhere way back it got included in real estate transaction packages, and now many, maybe most, maybe all, lenders use it.

I have handled that heretofore by calling and asking what sort of certification is desired. Of late, I have just declined to execute it, and returned it with the package noting that it cannot be notarized without some form of certification. Often there is a second Compliance Agreement in the package, which resolves the issue. This week I had two instances in which that was the only CA.

Is this particular document -- a Compliance Agreement sans notary certification -- unique to Texas, or do SAs in other states encounter it also?

I do find it interesting that certification of some sort is not required in all states for notarization. I know of no provision in Texas law that permits a notary just to sign off on a signature. That would appear to obviate all necessity for any words of acknowledement at all.

Reply by WDMD on 5/31/08 8:49am
Msg #249466

Re: Yes - it would be an acknowledgement unless there is

"Is this particular document -- a Compliance Agreement sans notary certification -- unique to Texas, or do SAs in other states encounter it also?

I do find it interesting that certification of some sort is not required in all states for notarization. I know of no provision in Texas law that permits a notary just to sign off on a signature. That would appear to obviate all necessity for any words of acknowledement at all."

When I encounter a document without a notary certificate in a loan package but with a place calling for notary signature I handle it as a witness of signature following the procedures set out in the Maryland regulations. I have not had a problem as of yet handling it this way.

The majority of the witnessing of signatures I have had are mainly people coming to me with their own homemade document. When questioned if they would like an acknowledgement or jurat attachment, or just a witnessing of signature, I have found that most choose the witnessing instead of a loose attachment.

Reply by Hugh Nations Signing Agents of Austin on 5/31/08 12:49pm
Msg #249505

Re: Yes - it would be an acknowledgement unless there is

***When I encounter a document without a notary certificate in a loan package but with a place calling for notary signature I handle it as a witness of signature following the procedures set out in the Maryland regulations.***

I see two problems with that interpretation. First, my experience with documents of all sorts is that when a witness to a signature is desired, the term "witness" is used, not "notary public." Second, the document in question specifically calls for for the date of expiration of my commission, which indicates that I would be signing in my capacity as a notary, rather than as a witness.

I was, incidentally, incorrect when I said the Compliance Agreement calls for a seal. It does not; it calls for a signature and a date of expiration for the commission.

Reply by WDMD on 5/31/08 1:03pm
Msg #249507

Re: Yes - it would be an acknowledgement unless there is

"I see two problems with that interpretation. First, my experience with documents of all sorts is that when a witness to a signature is desired, the term "witness" is used, not "notary public." Second, the document in question specifically calls for for the date of expiration of my commission, which indicates that I would be signing in my capacity as a notary, rather than as a witness."

I'm not referring to a document asking for a witness. I am referring to a document which has on it a signature line with the words "notary public" underneath and also asks for a commission expiration date, with no notarial certificate. In that case I am allowed to "witness" the signature per my states regulations instead of trying to chase someone down at the lender/and or title company asking them whether they want an acknowledgement or jurat attached.

Reply by Gary_CA on 5/31/08 9:42am
Msg #249474

I got that same stupid form this week.

It's amazing how loan package software (which can't be cheap) can't get those details straight. This package was CA property, CA lender and CA Title Company. Some of the docs had good 2008 CA forms, some old ones(a few of the jurat forms haven't been legal in CA since 2005), one ACK split across two pages... and then that compliance with "Notary Signature" and (seal). This was the most notary overkilled package I've ever seen. Had a notarized acknowledgment that he received the RTC (never mind that there's a copy of the RTC with his sig and date in the packet...)

I hate to confess in public, but I don't think I UPL'd cause I didn't say anything to anyone (so I didn't give any legal counsel hehehe )... I didn't want to spend half a day talking to people who couldn't answer... so I just stapled an ACK to the damn thing and went on with the signing. Those often get jurats so we'll see if anyone notices.

Reply by Gary_CA on 5/31/08 9:31am
Msg #249470

Not in CA... our handbook specifically forbids it. n/m

Reply by Sylvia_FL on 5/31/08 11:38am
Msg #249498

Re: Not in CA... our handbook specifically forbids it.

Gary
Can you direct me to the page in the CA handbook that prohibits a CA notary notarizing the signatures on a will. I can't find it (I have the 2008 handbook)

Reply by JanetK_CA on 5/31/08 4:42pm
Msg #249534

Re: Not in CA... our handbook specifically forbids it.

Interesting catch, Sylvia! It USED to be in the "General Information" section after "Certified Copies" and before "Illegal Advertising". And it was never an actual prohibition, but a recommendation, IMO. Here's the text of what was in prior handbooks:

"The California State Bar advises that when a notary public is asked to notarize a document which purports to be a will, the notary public should decline and advise the person requesting the notarization to consult a member of the California State Bar. If an attorney recomends that the document be notarized, a notary public may do so."

And, FWIW, in all the CA attorney-prepared estate plans I've ever notarized and witnessed, it's my recollection that the Will has always been only witnessed, not notarized.

Now I'm curious as to why it has been deleted from the current handbook. Probably because it's not a matter of law, but rather advice from the state Bar, however valid. Since wills are notarized in other states, it has been an area of confusion for some who assume that it is the same here.

Reply by Sylvia_FL on 5/31/08 9:09pm
Msg #249576

Re: Not in CA... our handbook specifically forbids it.

Thanks Janet
The FL Governor's handbook for notaries explains the procedure on notarizing signatures on a will, but the ASN advised not to and to refer the signer to an attorney.
I will only notarize the signatures on a will if the will has been drawn up by an attorney. I am not comfortable otherwise.

I thought it was just a recommendation in CA and not an actual prohibition.

(And of course, attorneys would rather have the testator consult them)

Reply by BrendaTx on 5/31/08 9:58pm
Msg #249581

Re: Not in CA... our handbook specifically forbids it.

I feel it is better for a notary to even leave the execution of a will to the attorneys....in Texas, anyhow...I sit in will signings almost weekly (acting as a witness) and the attorney has a very specific script (for lack of a better term) they go through. It was the same exact script as I heard an attorney use back in the 90's. It must be a pretty important thing for a testator to hear.

Off the top of my head...a lawyer will verify that the witnesses aren't going to benefit from the will. The lawyer verifies that the testator is over the age of 18...that the witnesses are over the age of 14...that the witnesses heard what was just said...that the testator heard what was just said...the testator verbally acknowledges that it is their last will and testament and that they have read the document and it is their final wishes and that the testator wishes for the witnesses serve as witnesses.

Reply by Gary_CA on 6/1/08 10:19pm
Msg #249652

Re: Not in CA... our handbook specifically forbids it.

Janet answered you well in regards to your will question... I was aware that it was a strong recommendation and not an absolute prohibition. I was not aware that it disapeared from the 2008 handbook. Ya caught me... several sources had sent me the significant changes in the 2008 law which I read carefully, so I never bothered to read the new handbook. Shame on me.

I was refering to the prohibition on signing and stamping a page without certificate language. That is specifically forbidden several times in the 2007 handbook (or 2005, whatever version was in vogue till just lately). " A notary seal shall not be affixed to a document without notorial wording." I may not have the quote exactly because I don't have to look it up. You can find it about 92 times in the handbook and 922 times in my official 6 hour class.

No certy no stampy. Period.

I can't think of any good reason to start notarizing home made wills, so I'm gonna keep operating under the old recommendation. "Grandma had the will notarized to make it official, and the notary did it, so he must have thought it was good." Can you say UPL???? No thanks. An attorney should do the will, and the attorney has an in house notary.

Reply by Sylvia_FL on 6/2/08 9:07am
Msg #249679

Re: Not in CA... our handbook specifically forbids it.

" "Grandma had the will notarized to make it official, and the notary did it, so he must have thought it was good." Can you say UPL???? No thanks. An attorney should do the will, and the attorney has an in house notary. "

Wish I had a dollar for every time someone thought a notary seal on a document meant the document was good (legal).
I refuse to do home made wills, but if they have been drawn up by a attorney then I will do them.

I remember doing a loan signing for an attorney and his wife. Met them at his office.
We got to talking after the loan signing. The attorney was also a notary, his wife helped him in the office. When he did wills, his wife witnessed them and he notarized.
I told him that Florida law forbade him notarizing his wife's signature, and of course he was notarizing witnesses signatures on a will.
He had no idea of that notary law and asked me to cite the source. I pulled out the Fl statutes and showed him the relevant statute.
He said that was fine, as he knew the wills he drew up wouldn't be contested, so there was no problem with his wife witnessing the wills and him notarizing her signature.
Guess even attorneys will break the laws.