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SIX STEPS TO A PROPER NOTARIZATION

THE THINGS EVERY NOTARY PUBLIC MUST KNOW

A PUBLICATION OF THE AMERICAN ASSOCIATION OF NOTARIES


Copyright 2010 American Association of Notaries, All Rights Reserved First Edition First Printing

ALL RIGHTS ARE RESERVED. No part of this booklet may be reproduced, stored in a retrieval system, or transmitted in any form or by any means electronic, mechanical, photocopying, recording, or any other except for brief passages in printed reviews or articles, without the prior written permission from the American Association of Notaries. Disclaimer: This book is intended as a reference volume and is not to be construed to be an authoritative statement of law. It is in no way intended as a substitute for any professional legal advice. No representation is made as to the accuracy or completeness of this publication. While every effort was made to ensure the correctness and comprehensiveness of this publication, American Association of Notaries is not responsible for any errors or omissions which may occur in this publication. This Association does not certify the authenticity of information contained herein that originated from third parties. Notary law differs from jurisdiction to jurisdiction, and may be interpreted or applied differently depending on your location or situation.

American Association of Notaries


PO Box 630601 Houston, Texas 77263 Phone: 800-721-2663 Fax: 800-721-2664

Email: www.usnotaries.com

Table of Contents
Introduction......4 The Six Steps to a Proper Notarization: 1. 2. 3. 4. 5. 6. Personal Appearance .............................................................................. 5 Scanning the Document ......................................................................... 5 Verifying the Identity of the Signer ....................................................... 6 Performing the Notarial Act ................................................................... 7 Completing the Notarial Certificate ....................................................... 9 Recording the Notarization in a Journal .............................................. 11

Official Notarial Seal ................................................................................................... 12 Copy Certifications and Other Acts ............................................................................. 13 Legal Advice ................................................................................................................ 14 Disclaimer .................................................................................................................... 14 Forms/Sample Certificates ........................................................................................... 16 _

Introduction
This instructional booklet covers acceptable fundamental notarial principles, standards, and procedures that are essential for the performance of a notarial act. This booklet is not intended to serve as a substitute for legal advice. A notary public does much more than simply verify identification and witness signatures. Notaries are state officers who perform certain duties on behalf of the state as a convenience to the public. In order to effectively execute his or her duties, a notary must have a comprehensive knowledge and understanding of notarial principles, standards and procedures, and must exercise his or her powers with a certain standard of care, due diligence, good judgment, and professionalism. The public is dependent upon notaries to perform their duties correctly in order to ensure the integrity of transactions. Many states do not provide guidelines for notarial procedures, and many states do not require their notaries to receive any type of education as to the functions and duties of the public office they hold. In general, it is the notary's responsibility to educate himself as to the important duties which have been entrusted to him by the state. The American Association of Notaries is dedicated to ensuring that notaries nation-wide have a thorough understanding of their powers, duties and responsibilities. For more information, please contact the AAN by calling (800) 721-2663, or by visiting our website at www.usnotaries.com.

Steps Required for the Performance of Notarial Acts


A notary public must be a disinterested third party to the transaction requiring notarization. That is, it would be a neglect of duty to act as a notary in a transaction from which the notary receives a personal benefit other than his or her notarial fees. The notary's primary responsibility with any transaction is to ensure that the person signing a document has a full understanding of its contents and is not signing the document under duress, and that the document is being executed by the authorized person. These responsibilities protect the public against fraud.

The Execution of Proper Notarial Procedures Requires the Following Notarial Protocols: Step 1: Personal Appearance

A notary public must always require that the principal signer personally appear physically in the presence of the notary for the notarization of the transaction. Personal appearance means that the signer and notary public are in the same room, close enough to be able to see each other, hear each other, and speak with each other. A notary public may not perform any notarial act when the individual whose signature is being notarized does not personally appear before the notary public at the time of the notarization. This means that a notary public may not: 1) 2) 3) rely on the statement of another person that the signature on the document is that of the purported signer; rely on the notary's own familiarity with the signature; or perform a notarial act by telephone, email, teleconference, or any other telecommunication equipment for the execution of a notarization.

If the principal signer is not physically present and before the notary public at the time of the notarization, the notary must decline the notarization. There are no exceptions to the requirement of the personal appearance of the document signer at the time of the execution of the notarization. For the notary public, this rule is not discretionary. In fact, notarizing a document without the signer being present completely defeats the purpose of notarization. Without the signer being in the notary's physical presence, the notary is unable to determine if the signer is competent, drunk, understands the documents contents, or even that the signer is alive.

Step 2:

Scanning the Document

Although the notary is not responsible for the contents of the document, a notary should always scan over the document being presented for notarization to ensure that the 5

document: 1) 2) has been completed and does not contain blank spaces or incomplete information; contains a pre-printed notarial certificate or other instructions on how the notary is to proceed with the notarization.

In addition, notaries who maintain journals or record books should note the title of the document in their journal and, if the document is conveying a piece of real estate, the notary should notate in the journal the name of the grantee(s) and the county where the subject land is located.

Step 3:

Verifying the Identity of the Signer

A notary public must exercise a strict standard of care when verifying the identity of a signer when providing notarial services. In most states, a notary public may verify identity by the following methods: Reliance upon a valid identification card or other form of photo identification Most commonly, the signer will present a driver license or other state-issued identification card. Each state has different standards for the type of identification that may be accepted, and you should consult your own individual state authorities for a list of acceptable forms of identification. However, almost always the identification must be government-issued and contain the photograph of the holder. In almost all cases, documents such as state driver licenses and identification cards, U.S. Passports and green cards are acceptable. Some states also have provisions that allow foreign driver licenses or passports to be acceptable for notarization purposes. Most states require that the identification document be unexpired. However, you should consult with your own state's laws to ascertain this information. Personal knowledge Most states allow a notary to verify the identity of the signer by the notary's own personal knowledge of that person's identity. The notary should use common sense to determine if the individual is personally known. Would you recognize this person if you ran into him on the street? Could you accurately describe him? Do you know his full name? Most importantly, would you be willing to testify in a court of law as to the identity of the person? Personal knowledge means that the notary has had previous interaction with the individual which establishes the individual's identity with reasonable certainty. If the signer is personally known to you, some states require that you indicate this fact in your notarial certificate. Some states do not allow a notary to notarize a person's signature based solely on the notary's personal knowledge of that person's identity. Check with 6

your state authorities to find out whether or not personal knowledge is an acceptable verification of identity for notarization purposes. Sworn statement of a credible witness Some states allow a notary to rely upon the sworn statement of a credible witness to determine a certain person's identity. This requires that the signer produce a friend or other person who swears in the presence of the notary that the individual is the person named in the document requiring notarization, and, in many states, that the signer does not possess valid identification. Some states allow this oath to be administered only orally, and others require that the statement be written and signed by the credible witness(es). Most state laws provide that a credible witness can only be used if it would be difficult and/or impossible for the signer of the document to produce identification. In most cases, this means that if the signer has simply forgotten his identification at home or his driver license is expired, a credible witness can NOT be used, and you should instead advise the signer to come back when he has his identification on his person. Each state's requirements regarding credible witnesses are different. Some states do not allow this form of identification at all; others allow it under strict circumstances; others require that the credible witness be personally known to the notary as well, or that two credible witnesses be used, etc. Therefore, you should review your state's notary laws and contact your state authorities to determine when and how this method of identification may be used. If the notary public is not able to establish the identity of the signer by any of the referenced forms of identification, the notary public must decline the notarization. Every notary public must read their state notary laws to make certain which forms of identification may be used in their state to provide notary services. The failure to verify the identity of a signer by satisfactory evidence may subject the notary to civil and criminal liability for malfeasance in office.

Step 4:

Performing the Notarial Act

The most important step in the notarization process is the performance of the notarial act itself. When notarizing a signature on a paper document, the typical notarial acts are acknowledgments and oaths/affirmations. The wording of the notarial certificate, as discussed in the next section, is an indication as to the type of notarial act being requested. If no certificate is provided on the document, or if the notary is unable to determine by the wording of the certificate which act is being requested, the notary should explain both types of acts to the signer and let the signer select. It is considered unauthorized practice of law for a notary to advise the signer which type of notarial act is required. 7

An acknowledgment is a notarial act generally associated with real estate conveyances, mortgages, powers of attorney, agreements, and general instruments of writing. An acknowledgment is the declaration by the signer of a document, that his or her signature is genuine and that he or she has executed that document voluntarily. In this instance, the document does not have to be signed in the notary's presence. The signer's acknowledgment that the execution of the document was his or her voluntary act is sufficient. When taking an acknowledgment, the notary can ascertain from ordinary conversation with the signer that the individual is alert, competent, and seems to have an understanding of the document's contents. You are not required to be a medical expert, but a common sense determination as to the signer's competency is necessary to ensure that the document is being signed voluntarily. You can make this determination by judging whether or not the signer appears to be intoxicated, frightened, or unable to understand the document. If other individuals are in the room, you may want to ask them to leave so you can question the signer in private as to whether or not he or she is truly executing this document voluntarily without coercion. You can compel an individual's acknowledgment by asking him or her:

Do you acknowledge that you have executed this document voluntarily with full understanding of its contents?
Once the person answers affirmatively, by nodding or by answering Yes or I do, the notarial act is completed. You certify that the act occurred by completing a notarial certificate as discussed in the next section. However, an acknowledgment is only one of the two common notarial acts. The other common act is the administration of an oath. Documents typically requiring an oath include affidavits, declarations, applications, court-related documents, other sworn statements. In this type of notarial act, the individual must actually sign the document in your presence as an indication that the signer has assumed the obligations of the oath. However, prior to this, you must take the signer's oath by asking him or her:

Do you swear that the contents of this document are true and correct?
After answering affirmatively, by answering Yes or I do, you should instruct the individual to sign in the appropriate space. When administering an oath, most states do not require that the affiant (i.e. the person taking the oath) raise his or her right hand, or place his hand on a Bible or other religious text. However, some states do require such formalities. You should consult your individual state authorities for exact information on how oaths are to be administered.

There are occasions where the signer will have some sort of religious or moral objection to taking an oath. In this case, an affirmation may be used. While legally equivalent to an oath, an affirmation is slightly different in that a sworn oath is understood to be a promise to a supreme being, whereas an affirmation is merely a confirmation made under penalties of perjury. Perjury is the crime of giving a false statement. If the signer objects to swearing, you may ask:

Do you solemnly affirm under penalties of perjury that the contents of this document are true and correct?
To this the signer must likewise answer affirmatively by saying either Yes or I do, followed by his or her signing the document in the appropriate space. It is crucial that the notary public and signer are able to communicate with each other without any language barriers. If there are communication barriers, a notary should not proceed in the notarization of the document. In some states, a notary public may not notarize a document for a signer that cannot directly acknowledge his signature or swear to the truthfulness of his statements in the notarial ceremony. In some states, a signer may not use an interpreter to communicate with the notary when the notarial act is performed. Encourage the signer to have his or her document notarized by a notary public who speaks the same language. A notary public cannot act as an interpreter and a notary at the same time. Note that oaths and affirmations may not be administered, nor can acknowledgments be taken, over the telephone or by proxy. The verbal notarial act must take place with the notary and the signer in the physical presence of reach other. An oath cannot be done on behalf someone else or a corporation. The verbal notarial act is the most important part of the notarization. Without this verbal ceremony, the notarization essentially does not mean anything, and courts have dismissed documents where the notary failed to perform the notarial act.

Step 5:

Completing the Notarial Certificate

When a notary performs a notarial act associated with a paper document, the notary must complete a notarial certificate. Each state has different requirements for the exact wording required in an acknowledgment certificate or a jurat (a certificate for an oath/affirmation). You should consult your individual state's laws for the exact requirements of certificates. Some states require exact wording and others require only certain elements. Regardless, if the certificate provided does not contain all of the required elements set forth in your state laws, you must add the necessary information to the pre-printed certificate to make it 9

comply with your state's laws, regardless of where the document was prepared or where it is going to be used. In almost all cases, a certificate must include: 1) THE VENUE the place where the notarization is performed, usually in the format State of ___________, County of _____________. This does not refer to the county where the notary resides, the county where the document is to be used, or the county where the signer resides. This refers to the actual county where you are located at the time you notarize the document. PERSONAL APPEARANCE a statement that the signer personally appeared, typically indicated by the words before me. DATE the date that the signer personally appeared before you and you completed the notarization. TYPE OF ACT the type of notarial act performed, indicated by the words acknowledged or sworn to. SIGNATURE AND SEAL the notary must sign his or her official signature exactly as it appears on file in the office of the commissioning authority, and affix his or her official seal (if required by their state laws). These tasks can not be delegated to the notary's clerk or other assistant. The notary must sign the certificate for himself/herself in permanent, dark ink, and affix the seal legibly in the signer's presence.

2) 3) 4) 5)

In addition, many states require that the notary indicate the type of identification used to identify the signer. Again, it is important that you consult your own state laws to determine what your certificate must include. Remember: whenever you perform a notarial act, you must complete a certificate. Some states allow notaries to simply witness signatures by signing their name, affixing their seal and dating. However, most states require that the notary perform either an acknowledgment or an oath, and complete a certificate certifying the details of the act. The certificate is the notary's domain, so the notary has the authority to make changes to it before the notarization is completed. Once the document is given back to the client, however, some states do not allow any corrections to be made after the fact. Again, consult your state laws and, always be prudent in completing your certificates. The certificate should reflect an accurate description of the notarial act. When you affix your signature and seal to the certificate, you are certifying that the certificate is correct. Therefore, be certain that the certificate is accurate before signing and sealing it.

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If no certificate is provided on the document, or if the notary is unable to determine by the wording of the certificate which act is being requested, the notary should explain both types of acts to the signer and let the signer select. Once the signer selects the type of act the notary should print, type, or stamp the appropriate wording onto the document before notarizing it. If there is no sufficient space on the document to print, type or stamp the certificate, some states allow the notary to attach a loose certificate (i.e. a separate page with just the notarial wording). Not all states allow loose certificates, but if your state allows it and you use this method, you should make a note on the loose certificate describing the document to which it was originally attached to prevent it from being attached to a different document. An example of a description would be: This certificate is attached to a 3 - page deed dated July 4, 2005, regarding property at 4567 Wilson Street, Austin, Texas, which was signed by Jane Doe and acknowledged before me on September 6, 2005. Consult your own state laws to determine whether or not loose certificates are acceptable. Keep in mind that it is considered unauthorized practice of law for a notary to advise the signer which type of notarial act is required. The document signer must be the one to select the type of certificate.

Step 6:

Record the Notarization in a Journal

Many states require that notaries maintain a journal or other form of record book to record every notarization performed. Even in states where such a journal is not required, state authorities always recommend that the notary maintain a consistent, complete, and sequential record of every notarial act performed by the notary. Journals are available for purchase from many office supply stores, as well as the American Association of Notaries. State requirements differ on exactly what information must be included in the notary journal. However, at the very least, the notary should record the date, type of act performed, a description of the document, the printed name of the signer, and the type of identification produced. Some states allow, and some even require, that the notary take a finger print from the signer. It is always recommended that the signer sign the notary's journal. This is confirmation that the signer was in the notary's presence and signed the journal at the time of the notarization. If state law does not require their notaries to obtain the signature and/or finger print of the document signer in their notary record book, the notary should not refuse to provide notary services for the signer based on that fact alone. However, the notary should indicate in the journal that the signer refused to sign and/or give a finger print.

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The notary record book is the best defense a notary public has from accusations of notary misconduct and liability. The notary record book should be tamper-proof and permanently bound with the pages consecutively numbered. It is advisable for a notary public to complete the notarial entry in the notary record book prior to performing the notarial act. The notary record book must not be shared or used by another notary public. In some states, a notary's journal is a public record and the public has the right to inspect it. In other states, a notary's journal is considered confidential. Regardless, the notary should exercise reasonable care to safeguard the journal from loss, destruction, or theft. Once a journal has been filled, it should be stored in a safe place. When a notary leaves employment due to termination or resignation, the notary can never surrender his or her journal or seal to the employer, even if the employer paid for the materials and/or commission. The journal and seal are the exclusive property of the notary and the employer could be subject to criminal penalties for keeping these items. It is recommended that your journal be locked or secured in the same place as the notary seal. Wherever these materials are placed should be a place only accessible to the notary. Every notary public must have his or her notary materials available when performing a notarial act. The entire act, including the affixing of the notary's seal and the completion of the journal entry, should be completed in the presence of the signer. When a notary retires or otherwise no longer maintains his or her commission, some states require that the journal and/or seal be deposited with a local court clerk or the state's commissioning authority. Some states have no provisions for these items to be deposited. Check with your state authorities to determine the proper method of disposal for these items.

The Official Notarial Seal


The majority of states require that notaries authenticate their official acts with a seal of office. Even in states where a seal is not required, most notaries choose to use one out of custom. The type of seal authorized to be used can vary by state law. Some states require the notarial seal to be a rubber stamp. Other states require the notarial seal to be an embosser that leaves a raised imprint on the page. Other states allow the notary to choose the type of seal, and some states set requirement for the size, shape or design of the seal. Check with your state's authorities for information on what the notarial seal should look like. A notary public may not use his or her official seal for commercial purposes. A notary public may only use the seal when authenticating an official act. Even though the use of a notary seal is optional in some states, a prudent notary authenticates an official act with a seal of office because certain documents require an official seal to be filed or recorded in some states. Most states have the legal requirement that the seal must be photographically reproducible when it is affixed to a document. The 12

notary seal must be stamped on the document so that it clearly imprints the required components of the notary seal and is legible when copied. Permanent ink must be used when using a rubber stamp type notary seal. Black ink is strongly recommended or required in many states. When using an embossed seal, the notary must be sure to darken the raised letters of the impression so that it is legible on a photocopy. Some states require their notaries to notify the commissioning authority when notary seals are lost or stolen. Deface and destroy the notary seal when the commission expires. It is very important that a notary public always keep his or her notary record books and notary seals securely locked in a drawer or other safe place to prevent other individuals from using such notary materials for fraudulent use. The notary record book and notary seal must be under the exclusive control of the notary public. Every notary public must have his or her notary materials available when providing notary services. If you leave your employer, take your notary seal and notary record book with you. The American Association of Notaries is authorized to sell notary stamps and seals in all states. Please contact the Association by calling (800) 721-2663 or visiting our website at www.usnotaries.com.

Copy Certification
In some states, notaries have the authority to certify a copy of documents which are not public records. Such a certification is only proof that the copy is a true copy of an original document. Notaries can never certify copies of vital records, such as birth, marriage, death, or divorce certificates or records, regardless of where the original records originate. In addition, notaries can not certify copies of deeds, mortgages, or any other document which has been recorded with a county clerk, court clerk, town clerk, any local, state, or federal government agency, the Secretary of State, or any other such entity. Notaries can also not certify copies of immigration records, school transcripts, or any document where certified copies can be obtained from some other official. Examples of documents which can usually be certified by notaries include personal letters, bills of sale, powers of attorney (assuming that the document has not been recorded), passports, driver licenses, and diplomas. However, some states do not allow notaries to certify copies of driver licenses or passports, and other states do not allow notaries to certify any documents at all. Other states allow the notary to only certify certain types of documents. You must consult your state laws before certifying a copy. Also note that, in some jurisdictions, this procedure is called a copy attestation as opposed to a certification, although the terms themselves are often used interchangeably.

Other Acts
Different jurisdictions allow notaries to perform additional acts, such as civil marriages, 13

making inventories of safe deposit boxes, protesting negotiable instruments, etc. You should consult your state laws regarding any other type of notarial act, as these types of acts are not uniform across the nation, i.e. notaries in Maine may possess powers that notaries in Texas do not, and vice versa.

Legal Advice
A notary public must not provide any legal advice regarding the document being notarized unless the notary is a licensed attorney at law. A notary must never mislead the public either in an oral or written nature that he or she has duties, rights, powers, or privileges that are not possessed by notary laws. The opinion of a non-attorney notary public may be mistaken as legal advice. Providing legal services by a notary public who is not an attorney may subject the notary public to the unauthorized practice of law penalties. Do not provide assistance or advice regarding forms. Do not prepare or create legal documents. Do not give an opinion as to a persons legal rights, obligations or liabilities regarding the document presented for notarization. When a signer inquires about his or her legal rights and obligations regarding the document being notarized, the notary must decline the notarization until the signer has had an opportunity to consult with an attorney for legal advice. Avoid assisting with immigration matters. Some states prohibit their notaries public from using the term Notario Publico or any equivalent non-English term in any business card, advertisement, notice, or sign under that title. In Mexico and other Spanishspeaking countries, a Notario Publico is a trained attorney with special expertise who can give legal advice and prepare legal forms.

Disclaimer
The information contained in this notary public booklet is not intended to be an authoritative statement of law. No representation is made as to the accuracy or completeness of this publication. While every effort was made to ensure the accuracy and completeness of this publication, this Association is not responsible for any errors or omissions which may occur in this booklet. This Association does not certify the authenticity of information contain herein that originated from third parties. This Association shall under no circumstances be liable for any actions taken or omissions made from reliance on any information contained herein whatever source or any other consequences from any such reliance. Notary law differs from jurisdiction to jurisdiction, and may be interpreted or applied differently depending on your location or situation. By providing this booklet, we are not acting as your attorney. If you have legal questions regarding acts or conduct as a notary public, please consult with an attorney, state statutes, or other appropriate legal resources. To achieve professionalism in your office as notary public, please contact this Association by calling, emailing, or writing us for your entire notary provisions such as: Errors and Omissions insurance, notary record book, notary seals, other notary supplies, 14

notary surety bond, online notary public training, notary packages to become a notary public, and renewal packages to maintain the office as notary public. For information regarding statutory requirements pertaining to your specific state notary laws, please visit our website, www.usnotaries.com, or contact your states commissioning authority. Sign up for membership in our Association today and benefit from our expertise in notary issues and enjoy quality notary products. We make it our business to serve you.

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FORMS
Ordinary Acknowledgment Certificate State of _____________ County of ___________ Before me, ___________ (insert the name and character of the officer), on this day personally appeared___________, known to me (or proved to me on the oath of ______________ or through _____________ (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this ______ day of ________, 20___. __________________________________ Signature of Notary Public My Commission Expires: _____________ Short Form Acknowledgment State of _____________ County of ___________ This instrument was acknowledged before me on _________ (date) by ___________ (name of person or persons acknowledging). __________________________________ Signature of Notary Public My Commission Expires: _____________ For a natural person as principal acting by attorney-in-fact: State of _____________ County of ___________ This instrument was acknowledged before me on _________ (date) by ___________ (name of attorney-in-fact) as attorney-in-fact on behalf of _____________ (name of principal). __________________________________ Signature of Notary Public My Commission Expires: _____________ 16 (Seal) (Seal) (Seal)

Acknowledgment for a corporation: State of _____________ County of ___________ This instrument was acknowledged before me on _________ (date) by ___________ (name of officer), _________________ (title of officer) of ______________ (name of corporation acknowledging), a ___________ (state of incorporation) corporation, on behalf of said corporation. __________________________________ Signature of Notary Public My Commission Expires: _____________ Jurat: State of _____________ County of ___________ Sworn to (or affirmed) and subscribed before me on the _______ day of __________, 20_____, by ________________ (name of principal signer). __________________________________ Signature of Notary Public My Commission Expires: _____________ (Seal) (Seal)

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