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“NUTS AND BOLTS” OF PERFORMING NOTARIAL ACTS

Kathleen Butler, Executive Director American Society of Notaries

Austin, TX | August 30, 2017

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TODAY’S DISCUSSION

WHY are documents notarized?

WHAT are a Notary’s fundamental responsibilities?

HOW does a Notary perform properly?

American Society of Notaries | 2017

WHY ARE DOCUMENTS NOTARIZED?

Assurances:

Notarial certificate (Prima facie evidence)

Notarization date and place

Signer was identified

Specific notarial act performed

Notary’s signature, official title

Official seal

Notary - impartial witness

Signer – awareness, free will


WHY ARE DOCUMENTS NOTARIZED?

How Notaries reliably produce assurances of notarization:

Consistent and informed performance of their acts and responsibilities; reasonable care

Training and ongoing knowledge


TEXAS NOTARY’S ESSENTIAL TOOLS

Assurances:

Notarization date and place

Signer was identified

Specific notarial act performed

Notary’s signature, official title

Official seal

Seal of office

Record book

Fee list, bill/receipt book

Bond

Errors & Omissions Insurance


A NOTARY’S FUNDAMENTAL RESPONSIBILITIES

Always act lawfully and

ethically

Refuse conflicts of interest

Safeguard Notary tools

Maintain commission information

and status

Reject improper coercion

Don’t discriminate

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7 Refuse to notarize when necessary


NOTARY PROHIBITIONS

…notarize without the signer present

…notarize your own signature

…alter or change any part of the document content

…choose the notarial certificate

…execute a false certificate

…enter ID number(s) in a journal record

…misrepresent Notary powers (advertising)

…perform notarizations by telephone

…overcharge for services

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DON’T:

Thoroughly review Notary laws, rules and informational materials for all prohibited

acts.


AUTHORIZED NOTARIAL DUTIES

Oaths and affirmations

Take depositions, issue protests

Acknowledgments

Proofs of written instruments

Certify copies of non-recordable documents

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Purpose: To compel truthfulness under

penalties of perjury about a

statement or promise.

Oath: Truthfulness

before God

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Oaths and

affirmations Affirmation: Truthfulness

under one’s own

conscience

Same legal effect



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Oaths and

affirmations “Administered” by the

Notary

Verbal ceremonies

Signed document: • OATH: “Do you, John Doe,

solemnly swear under penalties of

perjury that the information contained in

this document is true, so help you God?”

• AFFIRMATION: “Do you, John Doe, affirm under

penalties of perjury that the information contained

in this document is true?”

No document: “Do you, John Doe, --------------------------- you will uphold

the duties of the office to which you have been elected

(so help you God)?”

(solemnly swear) [affirm]

Also called a “verification” on

oath or affirmation



Jurat Certificate - Oath

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State of Texas

County of (where notarization is performed)

Sworn to and subscribed before me on

the (date) day of (month), (year), by

_________________________.

Name of Principal

( Notary Public’s Signature ) [SEAL]

NOTARY PUBLIC, STATE OF TEXAS

Venue

Indicates oath

Indicates presence

Name of person

appearing before the

Notary

Means “signed”

Exact date of

notarization

Official Notarial seal Notary’s official

signature



Purpose: Person declares (acknowledges) signing a

document voluntarily, for the purposes and

consideration stated in it.

Individual Capacity: An individual

(principal)

acknowledges his

signature before the

Notary

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Acknowledgments Representative Capacity: Another person has

authority to acknowledge

the principal’s signature

before the Notary



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“Taken” by the Notary

Verbal ceremony

Signed document Signed previously*

or

Signed before the Notary

Acknowledgments

“Do you, John Doe, acknowledge signing this

document willingly, for the purposes and

consideration stated in it?

*Signature must be “original” (wet-ink,

paper document)



Acknowledgment Certificate - Individual

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State of Texas


This instrument was acknowledged

before me on the (date) day of (month),

(year), by ________________________.

Name of Principal



Venue

Indicates

Ackn

Indicates presence

before Notary

Name of person

appearing before

the Notary

Exact date of

notarization

Official Notarial seal

Notary’s official

signature

Indicates

acknowledgment;

signed earlier or

before Notary

“Short Form”*

*If not the short form, Notary must note how signer was identified, by personal knowledge or satisfactory evidence.



Acknowledgment Certificate – Representative Capacity

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State of Texas


This instrument was acknowledged

before me on the (date) day of (month), (year),

by _____________________ as _____________________

Name of Representative Title of Representative

for/of _______________________________.

Name of Principal or Entity Represented



Venue

Indicates

acknowledgment;

Indicates presence

before Notary

Name of person

PRESENT before

the Notary

Exact date of

notarization

Official Notarial seal

Indicates

acknowledgment;

signed earlier or

before Notary

Notary’s official

signature

Name of principal or

entity represented by

the present person

Specific representative

capacity



Compare the differences:

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Oath/Affirmation Acknowledgment

• Principal swears to the truthfulness of the

document’s contents, or affirms it.

• Principal acknowledges he/she signed the

document willingly, for its stated purpose

and considerations.

• “Subscribed and sworn to (or affirmed)

before me on (exact date) by John Doe.”

• “Acknowledged before me on (exact date) by

John Doe.”

• Signer always signs document in the

Notary’s presence.

• Signer may sign in the Notary’s presence or

earlier; signature must be original.

• Verbal ceremony for an oath (or affirmation). • Verbal ceremony for an acknowledgment.

• Typical documents: the signer supplied

certain information in the document.

• Typical documents: the signer is agreeing to

terms in the document.



Purpose: To enable recording of a signed

document that the principal (signer)

has not acknowledged.

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Proofs of Written

Instruments The actual document signer is unable or

unwilling to acknowledge his signature.

A “subscribing” witness to the document

signing appears before the Notary to make a

sworn statement about the circumstances of

the document signing.



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Proofs of Written

Instruments Verbal oath

administered by

Notary

“Do you, John Doe, solemnly swear that:

You saw _________, the grantor or person who

executed the foregoing instrument, subscribe that

instrument;

(or…. that the grantor or person who executed the

instrument acknowledged in your presence that

he executed the same for the purposes and

consideration therein expressed;)

And that you signed the same as a witness at the

request of the grantor (or person who executed

the same),

…so help you God?”



Proof by Subscribing Witness - Certificate

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State of Texas,

County of _________

Before me, _________ (here insert the name and character of the notarizing officer), on this day

personally appeared _________, known to me (or proved to me on the oath of _________) to be the

person whose name is subscribed as a witness to the foregoing instrument of writing, and after being

duly sworn by me stated on oath that he/she saw _________, the grantor or person who executed the

foregoing instrument, subscribe the same (or that the grantor or person who executed such

instrument of writing acknowledged in his/her presence that he/she had executed the same for the

purposes and consideration therein expressed), and that he/she had signed the same as a witness

at the request of the grantor (or person who executed the same).

Given under my hand and seal of office this _____ day of _________, 20__.





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Certify Copies of

Non-Recordable Documents

Purpose: Enables a document copy to be

certified by a notary to be a true and

accurate duplicate of the original.

Not allowed for: Vital or public records

Potentially recordable documents



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Certify Copies of


Guidelines: No vital or public record, or potentially

recordable documents

Document to be copied must be the original

Notary – personally makes the photocopy (see certificate wording)

Review ID of document custodian

Completed notarial certificate - write it on, or attach it to, the copy



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Certify Copies of


Certificate – Certified Copy of Non-Recordable Document

State of Texas

County of _________

On this _____ day of _________, 20__, I certify that the

preceding or attached document is a true, exact,

complete, and unaltered copy made by me of _________

(description of document), presented to me by the

document’s custodian, _________, and that, to the best of

my knowledge, the photocopied document is neither a

public record nor a publicly recordable document,

certified copies of which are available from an official

source other than a Notary.

_____________________

(Notary Public Signature)

Notary Public, State of Texas (SEAL)



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Other Authorized

Duties

Take depositions: Swear-in and record the testimony of a

deponent; subject to Texas Rules of Civil

Procedure. Specific expertise

recommended.

Limited to specific

business purposes or

disciplines;

additional expertise

recommended

Issue protests: Notary’s written statement that upon

presentment or acceptance, a negotiable

instrument was neither paid nor accepted.

Most common to financial sector. Specific

expertise recommended.


1. Require personal appearance

2. Examine the document

3. Discuss fees

4. Identify the named signer

5. Create a record

6. Document execution and verbal ceremony

7. Complete the notarial certificate

PERFORMING NOTARIAL ACTS

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Steps of Notarization

Notarial acts

involving a signed

document

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Notarial acts involving a

signed document.

i Steps of Notarization

1 Require Personal Appearance

2 Examine (Scan) the Document To:

Physical presence

of the principal…

no exceptions!

Check for completeness (all pages present; blanks)

View the required notarial act

Assess the notarial certificate wording

View the named signer(s)

Check for witnesses

Review document or signature date

Determine if signature is original (if already

signed – acknowledgment only)

Determine how to describe the document in

the record book entry

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signed document.


3 Discuss Fees Allowable Fees* to Charge *most common acts in bold

• Fees are optional

• Disclose intent to charge fees, and

what they are, before notarizing.

Itemize and present fees.

• Remember posting of fees is

required.

• Prohibited: fees for additional

expenses. Charge only for the

notarial-act fees specified in statute.

Acknowledgment or proof - $6 ($1 each add’l sig.)

Oath or affirmation (certificate and seal) - $6

Certifying a copy - $6

Providing a copy of a notarial record – 50¢ pp

Taking a deposition - $6 for oath, certificate, seal, and other

steps; plus 50¢ per 100 words

Issuing a protest - Protesting for nonacceptance or nonpayment,

register and seal - $4; each notice of protest - $1; certificate and

seal to a protest - $4; protesting in all other cases - $4

Certificate under seal not otherwise provided for; or performing

any other lawful notarial act - $6

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signed document.


1 Identify the Signer(s)

Forms of Satisfactory Identification

Personal

knowledge

Satisfactory

evidence of

identification

A current identification card or other document issued by the

federal government or any state government that contains the

photograph and signature of the acknowledging person.

o Current driver’s license from Texas or any other state; must

include photo and signature

o Current U.S. Passport*

* Foreign Passport ONLY with respect to a deed or other instrument relating to a residential real estate transaction.

Oath of a credible witness who is personally known.

o Verbal oath (or affirmation) is administered to the credible

witness; record this fact in the record book.

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signed document.


1 Create a Record Record Book Entry Requirements

Record book entry

for every

notarial act

performed

Book, computer

or other storage

device

Date of each document notarized

Date of notarization

Name of person appearing (signer, grantor, subscribing witness or

maker)

The person’s mailing address (Eff. 9-1-17)

How the person was identified (personally known, or type of

satisfactory evidence; include name and mailing address of any credible

witness)

How a subscribing witness, if applicable, was identified (personally known or credible witness, only)

Name, address of grantee

If land conveyed, name of original grantee, county where land

located

A brief description of the document

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signed document.


3 Document Execution and Verbal Ceremony

Witness or review the signer’s signature.

Perform the appropriate verbal ceremony:

Oath or affirmation

“Do you, John Doe, [solemnly swear ] (affirm) under penalties of

perjury that the information contained in this document is true,

[so help you God?]”

Acknowledgment “Do you, John Doe, acknowledge signing this document willingly, for

the purposes and consideration stated in it?

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signed document.


Complete the Notarial Certificate

Complete at the time of notarization (while signer is present)

Fundamental elements: o Venue (location of notarization)

o Notarial act performed (“Subscribed and sworn to...”; “acknowledged…”)

o Exact date of notarization

o Name of principal

o Notary’s name, official signature (sign as commissioned)

o Notary’s official seal – (Correct elements; indelible ink; legible imprint; photographically

reproducible)

Correct the certificate wording if necessary (must reflect accurate facts)

If not the “short form” acknowledgment format: o Include how principal was identified (personally known, or satisfactory

evidence).

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Complete the Notarial Certificate - “DON’TS”

DO NOT (unless licensed to practice law) determine the type of notarial

certificate a document requires if the document lacks a certificate.

DO NOT sign a notarial certificate under any other name than the one

under which the notary was commissioned.

DO NOT complete a certificate indicating performance of any function

other than those outlined in Government Code 406.016.

DO NOT execute any certificate containing a statement known to be

false.

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Record Book

• Benefits of record keeping

• Paper or electronic o Electronic = computer, or other

electronic storage method… backed up

and capable of print-out

• Storage, retention

• Public record o Certified copies of notarial records

produced upon payment of fees

o Requests - SOS suggests certified letter

to Notary’s address of record

o Failure to respond, consequences

Notary must keep a

record of each document

notarized.

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Record Book

Producing a certified copy

of a record.

State of Texas

County of ____________

On this ____ day of _____, 20__, I certify, pursuant to

Tex. Gov’t Code §406.014(c), that the preceding or attached

document is a true, exact, complete and unaltered copy made

by me of _____________* (description of notarial record), the

original of which is held in my custody as a notarial record.

_____________________

(Notary Public Signature)

Notary Public, State of Texas (SEAL)

* For example, “Entry Number 25 dated 1-1-17, Page 9, book beginning (date)”

Certificate – Certified Copy of a Notarial Record

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CHALLENGING NOTARIZATIONS

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Essential Guidelines

Follow all basic requirements of notarization

Check statutes, rules for specifics

Use reasonable care

Carefully record additional details in the record book

If in doubt, refuse to notarize

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Document Lacks A Notarial

Certificate

Obtain the signer’s guidance

o Explain what acts may be

performed

o Show certificate samples

Add the chosen certificate

language

Refuse to notarize if the signer

cannot choose and cannot obtain

appropriate help

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Signer Uses Special

Signature Method

Texas law: “Signed” includes any symbol executed

or adopted by a person with present intention to

authenticate a writing.

o Proceed as usual on signature by mark ; note

circumstances in record book.

Notary may sign for any person physically unable to sign

or make a mark, subject to:

o Physically present; must be directed by person to sign

o Impartial witness must also be present

o Notary identifies both person and witness

o Notary makes special notation under signature:

o Notary notes circumstances in record book.

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Signature by Mark

Physically Unable to

Sign “Signature affixed by Notary in the presence of (name of witness), a disinterested witness, under Section 406.0165, Government Code.”



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Spoken or Written

Language Issues

Notary and signer do not speak the same language

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Document is in an unfamiliar language

o Must have direct verbal communication between Notary and the signer

o Notary – must be able to perform all routine assessments

o Signer – must be aware of contents



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Refusing to Notarize

Signer appears under duress

Possible unlawful, improper use of document

Signer’s capacity or willingness is in doubt

Improper act is requested or demanded

Signer cannot be satisfactorily identified

Notary is not familiar with the required notarial act

Notary is unable to adequately asses the document

Notary has a conflict of interest

Government employee notaries – special

circumstances

Employee notaries – requests during work hours

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Most common

circumstances


SUMMARY

i WHY, WHAT and HOW of notarization

Your acts provide important assurances to those relying on

document transactions

It is your fundamental duty to be informed,

act ethically, and perform lawfully

Your role is unique, your value is enduring.


“NUTS AND BOLTS” OF PERFORMING NOTARIAL ACTS

Thank you!
