Posted by Sha/CA on 1/26/12 5:12pm
Msg #409956

Help me - Notarize a trust?

I'm doing a signing this afternoon and the Washington state escrow wants me to notarize a trust or send proof that our SOS does not allow this. Does anyone know where to find this reg in the handbook? I know I cannot notarize a trust, but I don't have the time to hunt for the proof, right now. Thank you to all who respond, and more power to you for knowing where to look!

Reply by Linda_H/FL on 1/26/12 5:33pm
Msg #409957

Why can't you notarize a trust? n/m

Reply by JAM/CA on 1/26/12 5:34pm
Msg #409958

That was my question Linda. :) n/m

Reply by Linda Spanski on 1/26/12 5:34pm
Msg #409959

Yes: Why can't you notarize a trust?

If there's notary verbiage, why not? Or maybe they want certification of trust; same thing--why not?

Reply by Linda_H/FL on 1/26/12 5:38pm
Msg #409961

Re: Help me - Notarize a trust?...and btw

"but I don't have the time to hunt for the proof, right now. Thank you to all who respond, and more power to you for knowing where to look!"

You should be able to find this information - it's in your handbook and Government codes.

Reply by Sylvia_FL on 1/26/12 5:41pm
Msg #409962

Are you talking about a Deed of Trust?

The CA handbook for 2011 says for a deed of trust affecting real property you have to require a thumbprint in your journal.

Reply by Sha/CA on 1/26/12 5:43pm
Msg #409963

SOS in CA says we can only notarize signatures not documents. Thanks so far for all interest.

Reply by JAM/CA on 1/26/12 5:50pm
Msg #409964

Terribly confused here Sha. If you are speaking of putting the capacity, "Trustee" after the individuals names in your Notarial Certificate, then "NO", you cannot do that. It would just be their names. If you look in the handbook, under Acknowledgement, you will see where you cannot certify to capacity.

Reply by Sylvia_FL on 1/26/12 5:57pm
Msg #409965

Wait a minute are you saying that they want you to put your seal on a document when the borrowers aren't going to be signing it???

Yes, we notarize signatures, we are verifying that the person signing the document is signing and swearing to the facts in the document, or they are acknowledging that they signed it.

Reply by rengel/CA on 1/26/12 6:05pm
Msg #409966

Do they want you to notarize the signature of someone creating a Trust? Or do they want you to "notarize" a certified copy of the Trust?

I'm not understanding what it is they are asking you to do, therefore I cannot respond to the legality of it without more information.

My .02

Reply by Buddy Young on 1/26/12 7:40pm
Msg #409970

You can notarize a signature for almost any document as long as the notorial certificate is attached or they know what certificate to use.

Reply by Sha/CA on 1/26/12 8:22pm
Msg #409973

What do you think the signers capacity is here?

This is verbatem, checked and double-checked.

"On this____day of____ before me, personally appeared Mr. and Mrs. Smith, Trustee of the Mr. and Mrs. Smith, husband and wife and Trustees of the Smith Living Trust under declaration of Trust dated June 1, 1999 for the benefit of Mr and Mrs. Smith under trust instrument dated June 1, 1999 for the benefit of Mr. and Mrs. Smith, Borrower, to me known to be the individuals described in and who executed the within and foregoing instrument, and acknowledged that ____________ signed the same as ___________ free and voluntary act and deed, and on oath stated that__________________was authorized to execute the instrument and acknowledged it as the Trustee of Smith Living Trust to be the free and voluntary act of such party for the uses and purposes therein mentioned."

I am tempted to use a CA ack, but I hate to mess this up for the borrower. I have called escrow and the SS and have had no response yet. The ack. is confusing to me and I think the verbiage is incorrect anyway. What do you think? I would love to hear from some Washington notaries also, as that is where the property is.

Reply by Sha/CA on 1/26/12 8:27pm
Msg #409974

Sorry, should be "verbatim" n/m

Reply by Susan Fischer on 1/26/12 8:32pm
Msg #409976

First, you follow -your- state law. Second, "they" signed

the same as "their" free and voluntary...on oath stated "they are" authorized...

Thirde, notice the word "oath." A jurat is what is used when taking an oath.

You are free to add the CA verbiage to comply with CA law after clearing up the ack/jurat question with hiring entities.

jmnsho

Reply by Linda_H/FL on 1/26/12 8:52pm
Msg #409980

You can use an out of state certificate

as long as that cert doesn't require you to certify capacity, which this one is doing. This is in your handbook...page 11

http://www.sos.ca.gov/business/notary/forms/notary-handbook-2011.pdf

Print out that page and send it to your hiring party - there's your proof. The ack provided is unusable for you in CA.

Now, the prevailing law for the notary act is your state, CA....WA laws only come into play as to witness requirements, such as how many and can the notary be one...or drafting and general execution of the document - but CA notary law applies.

Reply by Sha/CA on 1/26/12 9:08pm
Msg #409984

A very big THANK YOU to Linda and Susan.

It is an eclectic view, albeit, I believe correct. Thanks again to you and NR.

Reply by Susan Fischer on 1/26/12 9:16pm
Msg #409987

Seems to me that the Notary is not the one "certifying"

a capacity, merely that the signers under oath stated so.

The Notary does not write in the capacity.

Reply by BrendaTx on 1/26/12 10:08pm
Msg #409990

My Rule: Never change the certificate on a trust or will.

Sha has his-her answer from Susan and Linda, but I want to say with emphasis that I feel if the notary does not believe that he or she can use this exact certificate, he or she should tell the presenter of the document (or hiring entity) that the presenter should seek notarization elsewhere and probably in the office of a licensed and practicing attorney. I believe that a California attorney would know how to manage this without botching the trust vehicle.

The notary must not, in my opinion, take it upon him- or herself to change the certificate.

Trusts and wills must be done according to the laws of the state in which they are intended to operate. In my opinion, notaries do not get to change wording of this specific nature. Once they do, it is likely that the trust documents will be invalidated. I suspect that this may be why notaries were cautioned against notarizing wills in California in the past. It does not fit the cookie cutter mold.

However, I hazard to guess that even in California there are accommodations in the state's laws that would allow a notary to properly execute this certificate for a Washington trust without striking words that are important to the trust vehicle according to Washington laws.

I do not have any cites for that, and don't want to parse through laws to find them. I just know that this is bigger than a notary and that certain clauses must be contained in even a notary's certificate now and then that make the certificates different than a notary operating without the advice of an attorney (boss) would be aware of.

My opinion is that Sha/Ca should punt.

A notary must reject the notarization completely if he or she cannot execute the certificate as it stands. Washington's laws may require a certificate of that specific nature. The signers might need to seek advice of a California attorney who can work around this by the authority of his law license, or communicate with the Washington attorney to figure out a resolution...that, or head on back to Washington to sign the document.

The moral of the story: Don't change the certificate of a trust or will instrument to suit the needs of standardized statutory certificate...ever. I believe that it could be a step in the direction of UPL. Sorry kids. Property and probate laws do not always allow for the standard acknowledgment or jurat. The lawmakers in Texas, Washington, etc. obviously don't care if the document is executed in California.

Reply by BrendaTx on 1/26/12 10:41pm
Msg #409991

My Rule: Never change the certificate... And...

I meant to also say that another good reason for the signers to engage a CA lawyer on this one is because if there is no case law or other legal provision that will allow a Ca. notary to notarize a trust using a certificate such as the one that was shared, the Ca. lawyer could advise the signer as to whether or not it would invalidate the trust for a Ca. notary to notarize a document using a Washington certificate.

I suppose that it is possible that if the trust was contested, it could be a hanging point that the Ca. notary was acting without authority. I worked as a legal assistant in an office where contested wills and other contested probate matters were our bread and butter.

That's why I'm so adamant about not changing certificates. You'd be surprised what minute errors can be successfully contested in a court of law and cause a beneficiary to pay $$$$$ in attorney fees and lose half of an estate.

Notaries don't need that kind of grief interrupting their lives.

Reply by Susan Fischer on 1/27/12 9:19am
Msg #410021

When pre-printed certs contain both borrowers' names,

and it is a split signing, I line through/initial the name of person not signing before me. When the cert contains language specific to another state, as in the CA verbiage re jurisdiction and perjury, I line out and initial.

There are certain circumstances where changing a cert is necessary. jmnsho

Reply by BrendaTx on 1/28/12 12:31am
Msg #410137

Agree, Susan. But, I am talking about wills and trust docs. n/m

Reply by BobbiCT on 1/27/12 7:25am
Msg #410011

Brenda, Nicely Said. /end n/m

Reply by Paula A Woodburn on 1/27/12 11:23am
Msg #410034

Re: My Rule: Never change the certificate on a trust or will.

I agree. As to the capacity question, what I see in the Jurat example is the oath of the signer that they execute in a capacity. The notary is identifing the signers, not attesting to the validity of their oath.

Reply by JAM/CA on 1/27/12 12:02am
Msg #410000

Re: What do you think the signers capacity is here?

If this certificate is written verbatim Sha, you cannot use it in the State of California. You would have to inform the hiring party that you would have to use a California All Purpose Acknowledgment, without the capacities of the signers or they would have to rewrite it to conform with California laws.

Yes, we can use out of state acknowledgments, but not if it is certifying to capacity within the notarial verbiage. Too much to cross out on this one. Linda gave you the correct page in the handbook to send to the hiring party.

I agree with Brenda, that an attorney would need to be contacted regarding this one. If this is the only way they would accept it in Washington, then you simply can't do it as it stands.

Reply by BrendaTx on 1/27/12 12:16am
Msg #410003

Great advice, Joan.

It always concerns me that notaries attach a cert that may not serve the purpose.

It should be shared with notaries as a part of the state education process in California that certain states have self-proving affidavits and other certs like a verification, for instance, that cannot be replaced by an ack or jurat. If language cannot be reasonably matched, send 'em back to the lawyer.

It's a big ol' dark hole that needs a little illumination.

Reply by rengel/CA on 1/27/12 12:41am
Msg #410006

They might have to make a trip to Washington...

From the 2011 CA notary Handbook, page 11
"A notary public may complete a certificate of acknowledgment required in another state or jurisdiction of the United States on documents to be filed in that other state or jurisdiction, provided the form does not require the notary public to determine or certify that the signer holds a particular representative capacity or to make other determinations and certifications not allowed by California law."

It is my understanding that "Trustee" is a "capacity" and you cannot certify that they hold that capacity.

My .02

Reply by JanetK_CA on 1/27/12 1:21am
Msg #410007

Re: They might have to make a trip to Washington...

I agree. I was working on a post that included the same quote, but I'm glad I checked back and read these last few posts first.

There's also one other problem with the Washington verbiage. The last sentence in the quote from the CA handbook says "or to make other determinations and certifications not allowed by California law." I believe the wording from the Washington cert that says "...to me known to be the individuals..." would also make it unacceptable to a CA notary, as we are no longer allowed to use personal knowledge. That phrase would normally send me right to a loose CA all purpose acknowledgment with a set of loan docs.

However, Brenda makes a very interesting point about changing the certificate - something I don't think I'd thought about to that extent before, although I've often called a client when presented with something like that in a loan package. But with a trust - and particularly if it was presented by the signers themselves - I see how that could be a whole other ball game!

Reply by BrendaTx on 1/27/12 7:02am
Msg #410009

Re: They might have to make a trip to Washington...

I do not disagree that the notary handbook gives a clear picture of not determining or certifying capacity.

I say don't do it. But, in general, I mean that no states' notaries should exchange a certificate of this type for one that is in their standard arsenal of certificates. Neither an Ack or a Jurat can be substituted in this situation.

FWIW, here are similar statutory Tx forms...a Texas notary should have no problem doing one of these in my uneducated layperson, non-attorney opinion. Many Tx notaries do not know that a verification certificate exists and will try to substitute an ack or jurat.


VERIFICATIONS

Form 1:
State of Texas
County of _______________

_______________, personally appeared before me, and being first duly sworn
declared that he/she signed this application in the capacity designated, if any,
and further states that he/she has read the above application and the statements
therein contained are true.

(Personalized Seal) Notary Public's Signature

Form 2:
State of Texas
County of _______________

Before me, a notary public, on this day personally appeared _______________,
known to me to be the person whose name is subscribed to the foregoing
document and, being by me first duly sworn, declared that the statements therein
contained are true and correct.
(Personalized Seal) Notary Public's Signature

Reply by BobbiCT on 1/27/12 7:23am
Msg #410010

Trustees pledging security & borrowing money - DIY lender

This is a CT perspective from a person who deal with trusts and trustees daily. NOT legal advice, but a GUESS as to a Simple Affidavit of Facts gone wrong by a CHEAP DIY lender or Escrow Company that didn't to pay an attorney to do it right & do it simple.

In short, Trustees do not own anything. They hold assets "in trust" for the beneficiaries.
It looks like the above was a CHEAP DIY convoluted, complicated way to circumvent a SIMPLE Affidavit of Facts with jurat language: easy document for a notary to just "notarize." Trustees state under oath as of the date they sign the Affidavit that 1) The Trust is still in effect and has not been modified (if modified, drafting attorney may add more "stuff" here), 2) the Trustees have the authority to pledge assets of the Trust (security for loan) and 3) the Trustees have the authority to borrow money in the Trust's name. Some savy, cautious lenders want the beneficiaries (whose assets are being pledged against a loan) to sign an Affidavit that they are aware of the loan and agree to the Trust assets being pledge and the Trustees borrowing money on behalf of the Trust (i.e., no lawsuit when the Trustees run off with the cash and the beneficiaries are left with nothing but debt that they didn't know about.)

SS wouldn't have a clue and shouldn't want to opinine on this. Finding Escrow's staff attorney for an opinion on this may be slow or "unavailable." BAD question to ask at the signing table, if Escrow (title insurance company legal brain) did not know Trustees held title, this question could cancel/delay the closing until Escrow Legal Underwriter approved! If a WA "living trust" is what here in CT is called a "revocable trust," mute point if intelligent life reviewed the trust prior to agreeing to commit to the loan: 99.99% of the time Trustees and beneficiaries are the SAME persons and the trust can be "revoked" (cancelled, terminated) at anytime for any reason.

Again, just a non-legal FYI for the curious perspective. Hugh, as an attorney, could chime in on this one.

Reply by FlaNotary2 on 1/27/12 9:30am
Msg #410022

Re: what Brenda/TX said

I agree and disagree.

Brenda and I have legal experience - something that a lot of notaries don't have - and this enables us to see the other side of the coin so to speak.

In Florida, our laws are very detailed when it comes to wills. A will that is simply witnessed by two people (not notarized) is a valid will. However, when it comes time to probate the will, one of the witnesses must be tracked down and required to go to the courthouse to prove up the will (this has to be done before a court clerk or judge - it can't be done before a notary without court approval).

To avoid this, the law provides that a will can be self-proved at the time of its execution by using a "Self-Proving Affidavit" form. The statutes specifically provide a form that can be used, but nonetheless, the law says that the officer must take the acknowledgment of the testator/trix, and the oaths of the two witnesses. This limits it down for us. The statutory form combines the acknowledgment and oath in the same certificate, but separate certificates could accomplish the same thing.

I question why a person who lives in Washington and wants their will/trust to operate under Washington law, would want the document signed/notarized in California. My attorney would definitely advise againt it. The will should be made in the state where you reside. If I was presented with a will made in another state, I still operate under Florida law. I don't have any problem notarizing a will - but the certificate has to comply with Florida law, period.

In your case, Sha, the certificate does not comply with California law - but that doesn't mean you can't notarize it. If you actually read the certificate they provided, it's an acknowledgment. Your California ack. form states that the person "acknowledged that they executed the document in their authorized capacity" &c. This form is requiring the same thing, only they want that declaration under oath (which is probably not required under Washington law). Attorneys have a habit - especially when it comes to notarial certificates - for making them long and incomprehensible.

Tell the hiring party/attorney who drafted the document to advise you whether an acknowledgment, an oath, or both are necessary. Then attach the certificates that comply with your state's laws. There is nothing that says you CAN'T notarize a trust or a will in California law - just be cautious.

Reply by HisHughness on 1/27/12 12:58pm
Msg #410045

Re: what Brenda/TX said

***I have legal experience - something that a lot of notaries don't have***

So, if I hawk hotdogs at the ballpark for Oscar Meyer -- Osca Meyer being a corporation -- does that mean I have corporate experience?

Reply by jba/fl on 1/27/12 1:33pm
Msg #410052

That would depend on volume, number of ballparks, etc.

Not enough info here.

ROFL

Reply by BrendaTx on 1/28/12 12:38am
Msg #410138

Re: what Brenda/TX said

*The statutory form combines the acknowledgment and oath in the same certificate, but separate certificates could accomplish the same thing.*

I do not dispute that at this time, but I feel that it is not a good idea for a notary to do that. I am not sure why, but I don't think it is a good idea.

*I question why a person who lives in Washington and wants their will/trust to operate under Washington law, would want the document signed/notarized in California. My attorney would definitely advise againt it. The will should be made in the state where you reside. If I was presented with a will made in another state, I still operate under Florida law. I don't have any problem notarizing a will - but the certificate has to comply with Florida law, period.*

My guess was that they were visiting California, or staying in a winter home. Little concern is given to a notary's certificate when lawyers/lenders/whomever want to get something signed.