NUTS AND BOLTS OF PERFORMING NOTARIAL ACTS Kathleen Butler, Executive Directr American Sciety f Ntaries Austin, TX August 30, 2017
TODAY S DISCUSSION WHY are dcuments ntarized? WHAT are a Ntary s fundamental respnsibilities? HOW des a Ntary perfrm prperly? i
WHY ARE DOCUMENTS NOTARIZED? Assurances: Ntary - impartial witness Ntarial certificate (Prima facie evidence) Signer awareness, free will Ntarizatin date and place Signer was identified Specific ntarial act perfrmed Ntary s signature, fficial title Official seal
WHY ARE DOCUMENTS NOTARIZED? Hw Ntaries reliably prduce assurances f ntarizatin: Cnsistent and infrmed perfrmance f their acts and respnsibilities; reasnable care Training and nging knwledge
TEXAS NOTARY S ESSENTIAL TOOLS Seal f ffice Recrd bk Fee list, bill/receipt bk Bnd Errrs & Omissins Insurance
A NOTARY S FUNDAMENTAL RESPONSIBILITIES Always act lawfully and ethically Safeguard Ntary tls 4 Maintain cmmissin infrmatin and status Reject imprper cercin 5 6 Refuse cnflicts f interest Dn t discriminate 7 Refuse t ntarize when necessary
NOTARY PROHIBITIONS DON T: ntarize withut the signer present ntarize yur wn signature alter r change any part f the dcument cntent chse the ntarial certificate execute a false certificate enter ID number(s) in a jurnal recrd misrepresent Ntary pwers (advertising) perfrm ntarizatins by telephne vercharge fr services Thrughly review Ntary laws, rules and infrmatinal materials fr all prhibited acts.
AUTHORIZED NOTARIAL DUTIES Oaths and affirmatins Acknwledgments Prfs f written instruments 4 5 Certify cpies f nnrecrdable dcuments Take depsitins, issue prtests
AUTHORIZED NOTARIAL DUTIES Oaths and affirmatins Same legal effect Purpse: T cmpel truthfulness under penalties f perjury abut a statement r prmise. Oath: Truthfulness befre Gd Affirmatin: Truthfulness under ne s wn cnscience
AUTHORIZED NOTARIAL DUTIES Oaths and affirmatins Administered by the Ntary Verbal ceremnies N dcument: (slemnly swear) D yu, Jhn De, --------------------------- yu will uphld [affirm] the duties f the ffice t which yu have been elected (s help yu Gd)? Signed dcument: OATH: D yu, Jhn De, slemnly swear under penalties f perjury that the infrmatin cntained in this dcument is true, s help yu Gd? AFFIRMATION: D yu, Jhn De, affirm under penalties f perjury that the infrmatin cntained in this dcument is true? Als called a verificatin n ath r affirmatin
AUTHORIZED NOTARIAL DUTIES Jurat Certificate - Oath Venue Indicates ath Indicates presence Name f persn appearing befre the Ntary State f Texas Cunty f (where ntarizatin is perfrmed) Swrn t and subscribed befre me n the (date) day f (mnth), (year), by. Name f Principal ( Ntary Public s Signature ) [SEAL] NOTARY PUBLIC, STATE OF TEXAS Means signed Exact date f ntarizatin Ntary s fficial signature Official Ntarial seal
AUTHORIZED NOTARIAL DUTIES Purpse: Persn declares (acknwledges) signing a dcument vluntarily, fr the purpses and cnsideratin stated in it. Acknwledgments Individual Capacity: An individual (principal) acknwledges his signature befre the Ntary Representative Capacity: Anther persn has authrity t acknwledge the principal s signature befre the Ntary
AUTHORIZED NOTARIAL DUTIES Acknwledgments Taken by the Ntary Verbal ceremny Signed dcument Signed previusly* r Signed befre the Ntary *Signature must be riginal (wet-ink, paper dcument) D yu, Jhn De, acknwledge signing this dcument willingly, fr the purpses and cnsideratin stated in it?
AUTHORIZED NOTARIAL DUTIES Acknwledgment Certificate - Individual Venue Indicates Ackn Indicates presence befre Ntary Name f persn appearing befre the Ntary Ntary s fficial signature Shrt Frm * State f Texas Cunty f (where ntarizatin is perfrmed) This instrument was acknwledged befre me n the (date) day f (mnth), (year), by. Name f Principal ( Ntary Public s Signature ) [SEAL] NOTARY PUBLIC, STATE OF TEXAS Indicates acknwledgment; signed earlier r befre Ntary Exact date f ntarizatin Official Ntarial seal *If nt the shrt frm, Ntary must nte hw signer was identified, by persnal knwledge r satisfactry evidence.
AUTHORIZED NOTARIAL DUTIES Acknwledgment Certificate Representative Capacity Venue Indicates acknwledgment; Indicates presence befre Ntary Name f persn PRESENT befre the Ntary Ntary s fficial signature State f Texas Cunty f (where ntarizatin is perfrmed) This instrument was acknwledged befre me n the (date) day f (mnth), (year), by as Name f Representative Title f Representative fr/f. Name f Principal r Entity Represented ( Ntary Public s Signature ) [SEAL] NOTARY PUBLIC, STATE OF TEXAS Indicates acknwledgment; signed earlier r befre Ntary Exact date f ntarizatin Specific representative capacity Name f principal r entity represented by the present persn Official Ntarial seal
AUTHORIZED NOTARIAL DUTIES Cmpare the differences: Oath/Affirmatin Principal swears t the truthfulness f the dcument s cntents, r affirms it. Subscribed and swrn t (r affirmed) befre me n (exact date) by Jhn De. Signer always signs dcument in the Ntary s presence. Acknwledgment Principal acknwledges he/she signed the dcument willingly, fr its stated purpse and cnsideratins. Acknwledged befre me n (exact date) by Jhn De. Signer may sign in the Ntary s presence r earlier; signature must be riginal. Verbal ceremny fr an ath (r affirmatin). Verbal ceremny fr an acknwledgment. Typical dcuments: the signer supplied certain infrmatin in the dcument. Typical dcuments: the signer is agreeing t terms in the dcument.
AUTHORIZED NOTARIAL DUTIES Prfs f Written Instruments Purpse: T enable recrding f a signed dcument that the principal (signer) has nt acknwledged. The actual dcument signer is unable r unwilling t acknwledge his signature. A subscribing witness t the dcument signing appears befre the Ntary t make a swrn statement abut the circumstances f the dcument signing.
AUTHORIZED NOTARIAL DUTIES Prfs f Written Instruments Verbal ath administered by Ntary D yu, Jhn De, slemnly swear that: Yu saw, the grantr r persn wh executed the freging instrument, subscribe that instrument; (r. that the grantr r persn wh executed the instrument acknwledged in yur presence that he executed the same fr the purpses and cnsideratin therein expressed;) And that yu signed the same as a witness at the request f the grantr (r persn wh executed the same), s help yu Gd?
AUTHORIZED NOTARIAL DUTIES Prf by Subscribing Witness - Certificate State f Texas, Cunty f Befre me, (here insert the name and character f the ntarizing fficer), n this day persnally appeared, knwn t me (r prved t me n the ath f ) t be the persn whse name is subscribed as a witness t the freging instrument f writing, and after being duly swrn by me stated n ath that he/she saw, the grantr r persn wh executed the freging instrument, subscribe the same (r that the grantr r persn wh executed such instrument f writing acknwledged in his/her presence that he/she had executed the same fr the purpses and cnsideratin therein expressed), and that he/she had signed the same as a witness at the request f the grantr (r persn wh executed the same). Given under my hand and seal f ffice this day f, 20. ( Ntary Public s Signature ) [SEAL] NOTARY PUBLIC, STATE OF TEXAS
AUTHORIZED NOTARIAL DUTIES Certify Cpies f Nn- Recrdable Dcuments Purpse: Enables a dcument cpy t be certified by a ntary t be a true and accurate duplicate f the riginal. Nt allwed fr: Vital r public recrds Ptentially recrdable dcuments
AUTHORIZED NOTARIAL DUTIES Certify Cpies f Nn- Recrdable Dcuments Guidelines: N vital r public recrd, r ptentially recrdable dcuments Dcument t be cpied must be the riginal Ntary persnally makes the phtcpy (see certificate wrding) Review ID f dcument custdian Cmpleted ntarial certificate - write it n, r attach it t, the cpy
AUTHORIZED NOTARIAL DUTIES Certify Cpies f Nn- Recrdable Dcuments Certificate Certified Cpy f Nn-Recrdable Dcument State f Texas Cunty f On this day f, 20, I certify that the preceding r attached dcument is a true, exact, cmplete, and unaltered cpy made by me f (descriptin f dcument), presented t me by the dcument s custdian,, and that, t the best f my knwledge, the phtcpied dcument is neither a public recrd nr a publicly recrdable dcument, certified cpies f which are available frm an fficial surce ther than a Ntary. (Ntary Public Signature) Ntary Public, State f Texas (SEAL)
AUTHORIZED NOTARIAL DUTIES Other Authrized Duties Limited t specific business purpses r disciplines; additinal expertise recmmended Take depsitins: Swear-in and recrd the testimny f a depnent; subject t Texas Rules f Civil Prcedure. Specific expertise recmmended. Issue prtests: Ntary s written statement that upn presentment r acceptance, a negtiable instrument was neither paid nr accepted. Mst cmmn t financial sectr. Specific expertise recmmended.
PERFORMING NOTARIAL ACTS i 1. Require persnal appearance Steps f Ntarizatin Ntarial acts invlving a signed dcument 2. Examine the dcument 3. Discuss fees 4 4. Identify the named signer 5 5. Create a recrd 6 6. Dcument executin and verbal ceremny 7 7. Cmplete the ntarial certificate
PERFORMING NOTARIAL ACTS Steps f Ntarizatin 1 2 1 Require Persnal Appearance 2 Examine (Scan) the Dcument T: i Physical presence f the principal n exceptins! Ntarial acts invlving a signed dcument. Check fr cmpleteness (all pages present; blanks) View the required ntarial act Assess the ntarial certificate wrding View the named signer(s) Check fr witnesses Review dcument r signature date Determine if signature is riginal (if already signed acknwledgment nly) Determine hw t describe the dcument in the recrd bk entry
PERFORMING NOTARIAL ACTS Steps f Ntarizatin 3 3 Discuss Fees Allwable Fees* t Charge *mst cmmn acts in bld i Fees are ptinal Disclse intent t charge fees, and what they are, befre ntarizing. Itemize and present fees. Ntarial acts invlving a signed dcument. Remember psting f fees is required. Prhibited: fees fr additinal expenses. Charge nly fr the ntarial-act fees specified in statute. Acknwledgment r prf - $6 ($1 each add l sig.) Oath r affirmatin (certificate and seal) - $6 Certifying a cpy - $6 Prviding a cpy f a ntarial recrd 50 pp Taking a depsitin - $6 fr ath, certificate, seal, and ther steps; plus 50 per 100 wrds Issuing a prtest - Prtesting fr nnacceptance r nnpayment, register and seal - $4; each ntice f prtest - $1; certificate and seal t a prtest - $4; prtesting in all ther cases - $4 Certificate under seal nt therwise prvided fr; r perfrming any ther lawful ntarial act - $6
PERFORMING NOTARIAL ACTS Steps f Ntarizatin 4 1 Identify the Signer(s) Persnal knwledge Ntarial acts invlving a signed dcument. Satisfactry evidence f identificatin Frms f Satisfactry Identificatin A current identificatin card r ther dcument issued by the federal gvernment r any state gvernment that cntains the phtgraph and signature f the acknwledging persn. Current driver s license frm Texas r any ther state; must include pht and signature Current U.S. Passprt* * Freign Passprt ONLY with respect t a deed r ther instrument relating t a residential real estate transactin. Oath f a credible witness wh is persnally knwn. Verbal ath (r affirmatin) is administered t the credible witness; recrd this fact in the recrd bk. i
PERFORMING NOTARIAL ACTS Steps f Ntarizatin 5 1 Create a Recrd Recrd Bk Entry Requirements Recrd bk entry fr every ntarial act perfrmed Ntarial acts invlving a signed dcument. Bk, cmputer r ther strage device Date f each dcument ntarized Date f ntarizatin Name f persn appearing (signer, grantr, subscribing witness r maker) The persn s mailing address (Eff. 9-1-17) i Hw the persn was identified (persnally knwn, r type f satisfactry evidence; include name and mailing address f any credible witness) Hw a subscribing witness, if applicable, was identified (persnally knwn r credible witness, nly) Name, address f grantee If land cnveyed, name f riginal grantee, cunty where land lcated A brief descriptin f the dcument
PERFORMING NOTARIAL ACTS Steps f Ntarizatin 6 3 Dcument Executin and Verbal Ceremny Witness r review the signer s signature. Perfrm the apprpriate verbal ceremny: Oath r affirmatin i D yu, Jhn De, [slemnly swear ] (affirm) under penalties f perjury that the infrmatin cntained in this dcument is true, [s help yu Gd?] Ntarial acts invlving a signed dcument. Acknwledgment D yu, Jhn De, acknwledge signing this dcument willingly, fr the purpses and cnsideratin stated in it?
PERFORMING NOTARIAL ACTS Steps f Ntarizatin 7 Cmplete the Ntarial Certificate i Cmplete at the time f ntarizatin (while signer is present) Fundamental elements: Ntarial acts invlving a signed dcument. Venue (lcatin f ntarizatin) Ntarial act perfrmed ( Subscribed and swrn t... ; acknwledged ) Exact date f ntarizatin Name f principal Ntary s name, fficial signature (sign as cmmissined) Ntary s fficial seal (Crrect elements; indelible ink; legible imprint; phtgraphically reprducible) Crrect the certificate wrding if necessary (must reflect accurate facts) If nt the shrt frm acknwledgment frmat: Include hw principal was identified (persnally knwn, r satisfactry evidence).
PERFORMING NOTARIAL ACTS Steps f Ntarizatin 7 Cmplete the Ntarial Certificate - DON TS i DO NOT (unless licensed t practice law) determine the type f ntarial certificate a dcument requires if the dcument lacks a certificate. DO NOT sign a ntarial certificate under any ther name than the ne under which the ntary was cmmissined. DO NOT cmplete a certificate indicating perfrmance f any functin ther than thse utlined in Gvernment Cde 406.016. DO NOT execute any certificate cntaining a statement knwn t be false.
AUTHORIZED NOTARIAL DUTIES Recrd Bk Ntary must keep a recrd f each dcument ntarized. i Benefits f recrd keeping Paper r electrnic Electrnic = cmputer, r ther electrnic strage methd backed up and capable f print-ut Strage, retentin Public recrd Certified cpies f ntarial recrds prduced upn payment f fees Requests - SOS suggests certified letter t Ntary s address f recrd Failure t respnd, cnsequences
AUTHORIZED NOTARIAL DUTIES Recrd Bk Prducing a certified cpy f a recrd. Certificate Certified Cpy f a Ntarial Recrd State f Texas Cunty f On this day f, 20, I certify, pursuant t Tex. Gv t Cde 406.014(c), that the preceding r attached dcument is a true, exact, cmplete and unaltered cpy made by me f * (descriptin f ntarial recrd), the riginal f which is held in my custdy as a ntarial recrd. (Ntary Public Signature) Ntary Public, State f Texas (SEAL) i * Fr example, Entry Number 25 dated 1-1-17, Page 9, bk beginning (date)
CHALLENGING NOTARIZATIONS i Essential Guidelines Fllw all basic requirements f ntarizatin Check statutes, rules fr specifics Use reasnable care Carefully recrd additinal details in the recrd bk If in dubt, refuse t ntarize
CHALLENGING NOTARIZATIONS i Obtain the signer s guidance Dcument Lacks A Ntarial Certificate Explain what acts may be perfrmed Shw certificate samples Add the chsen certificate language Refuse t ntarize if the signer cannt chse and cannt btain apprpriate help
CHALLENGING NOTARIZATIONS i Signer Uses Special Signature Methd Signature by Mark Physically Unable t Sign Texas law: Signed includes any symbl executed r adpted by a persn with present intentin t authenticate a writing. Prceed as usual n signature by mark ; nte circumstances in recrd bk. Ntary may sign fr any persn physically unable t sign r make a mark, subject t: Physically present; must be directed by persn t sign Impartial witness must als be present Ntary identifies bth persn and witness Ntary makes special ntatin under signature: Signature affixed by Ntary in the presence f (name f witness), a disinterested witness, under Sectin 406.0165, Gvernment Cde. Ntary ntes circumstances in recrd bk.
CHALLENGING NOTARIZATIONS Spken r Written Language Issues Ntary and signer d nt speak the same language Dcument is in an unfamiliar language Must have direct verbal cmmunicatin between Ntary and the signer i Ntary must be able t perfrm all rutine assessments Signer must be aware f cntents
CHALLENGING NOTARIZATIONS i Refusing t Ntarize Mst cmmn circumstances Signer appears under duress Pssible unlawful, imprper use f dcument Signer s capacity r willingness is in dubt Imprper act is requested r demanded Signer cannt be satisfactrily identified Ntary is nt familiar with the required ntarial act Ntary is unable t adequately asses the dcument Ntary has a cnflict f interest Gvernment emplyee ntaries special circumstances Emplyee ntaries requests during wrk hurs
SUMMARY WHY, WHAT and HOW f ntarizatin i Yur acts prvide imprtant assurances t thse relying n dcument transactins It is yur fundamental duty t be infrmed, act ethically, and perfrm lawfully Yur rle is unique, yur value is enduring.
NUTS AND BOLTS OF PERFORMING NOTARIAL ACTS Thank yu!