Can I notarize this document?Brenda Stone
Today, we are focusing on confusing and unfamiliar documents that notaries are requested to notarize. We are going in this direction today because after polling several new notaries this month, I learned that many would like to know how to handle documents they have never heard of–the crazy ones…the ones that are not in loan document packages.
I ran across one that made me scratch my head, so we will take a look at it. Its purpose is to say who gets my DNA results from a genealogy company when I die.
It is called a Beneficiary of DNA Information, and it is pictured in the image below.
By analyzing this document, we will answer common questions asked by new notaries, for instance:
- What documents can I notarize legally?
- What should I do about blanks in documents presented for notarization?
- Who provides the witness? Do I need to ID the witness? How do they sign?
Please remember that this is a document that I will soon sign, so I am NOT providing legal advice. I’m sharing insight on how I looked at this document when it first arrived for me to sign and have notarized. This document is so confusing that even five days later, I’m still trying to make sure that I’m not wrong before I submit this article to be published! At any rate, it’s a perfect example of the kinds of documents notaries have to deal with in the real world.
I marked up the example document (Beneficiary of DNA Information) with colors. Here’s what the colors mean:
- Red (numbered items) – Notary issues to solve.
- Yellow (highlighting) – Filled in before I received the document, so the yellow spots won’t be a problem for the notary’s customer or the notary.
- Blue (numbered items) – Items that are filled in by the customer. But, beware! Your customers WILL try to make these items YOUR problems by asking you for help.
- Green (highlighting) – These were empty when the document was provided to me, so these blanks could also become troublesome for a notary, even though this should be filled in by the customer/signer.
Let’s get started!
As always, keep in mind this information is not legal advice; it’s merely general information based on standard notary practices.
Item #1 – New notaries will ask “Can I notarize this document? It’s a Beneficiary of DNA Information.”
Item #1 appears near the title of the document. Here’s why —
- It is common for a new notary to want to know if it is “legal” to notarize a new and unfamiliar document.
- They also ask for tips on how to notarize it.
If a person brings me a handwritten statement that says “I AM MARY JONES AND I LIKE STRAWBERRY ICE CREAM!” I can notarize it, as long as it will be signed by the individual named Mary Jones, the person can be identified, and a few other things can take place.
In other words, a notary may consider notarizing any document presented as long the situation will meet the points listed below. We strongly encourage notaries to verify that all of these points apply to their laws as part of their self-education process. Please take a moment to understand this valuable point: Documents are notarized using the same steps each time. If you know the steps, you will know if you can or can’t notarize a document.
A notary may notarize any document if the criteria below is met.
The action requested must be within authorized notarial duties as set forth in the notary’s law. Know your authorized duties so that you are not sanctioned for doing something that isn’t within your authority.
An individual other than the notary will sign in the notary’s presence (or has already signed) the document being notarized and will make the following verbal ceremony
(1) the individual will swear an audible oath or make a verbal affirmation and sign the document before the notary if a jurat is attached to the document, or
(2) give the notary a verbal acknowledgment that the signature placed on the document previously is his/her genuine signature placed there for legitimate purposes.1
The notary must be able to lawfully identify the signer (whether by identification documents, personal knowledge, or credible witness(es)) as required by the notary’s state law.
The signer meets with the notary and satisfies the “personal appearance” requirement according to the notary’s laws, whether appearing online remotely or in the physical presence of the notary.
The notary must be able to communicate directly with the signer in a language both of them understand whether a foreign language, handwritten notes, lip-reading, American sign language, or a combination of two or more of those communication devices. (Arizona is the only state that I am aware of that specifically mentions in state notary laws and the notary handbook that an intermediary/interpreter can be used to facilitate communication between the notary and the signer. I am not aware of any laws that allow apps on phones or devices to act as an interpreter. Check with your state’s notary public administrator if you intend to use technology of this type.)
The signer must sign the document willingly, without being coerced. If coercion is evident, the notary should not notarize the document.
The signer must be capable of understanding why he/she is signing the document. If the signer isn’t capable, the notary should decline to notarize.
The document may not have blanks within—it must be complete. If there are blanks, the signer (not the notary) must fill them in so that the document is complete.
A notarial certificate must be present and it must meet the standards of the notary’s state notary laws. If a certificate is present but isn’t adequate according to the notary’s state laws, the notary may make corrections to the certificate by hand or attach a corresponding certificate and complete the notarization. If no certificate is present, the notary should show samples of a certificate of acknowledgment and a jurat to the signer. The signer (not the notary) must pick the certificate.
The requirements for the notary’s journal must be fulfilled and an entry properly recorded. (Not all states require notary record books; you may keep one even if not required to.)
Also Important —
- The notary may decline if the signer will not or cannot pay the statutory fee for notarization in the notary’s state. On the other hand, the notary may perform the act at no charge if he or she chooses.
- Notaries must verify that all of the above-stated bullet points are in harmony with their individual state’s notary laws before relying on the list.
- Every document is handled basically the same! Once you know for certain that this list is in alignment with your notary laws, use it! Memorize it and know it completely. And, the next time you run across a document you are unfamiliar with, you’ll be able to independently handle ANY notarization!
Item #2 – Notaries also ask “What goes in all of these blanks in the middle of the document?”
This is a common question received in my inbox. Let’s take a look at the blanks that follow the blue notation of Item #2. Fortunately, the names highlighted in yellow were filled in on this document when the fictional notary’s fictional customer received it, so we can skip those.
However, the blanks highlighted in green will cause confusion because they are in an unexpected place. It sort of looks like the notary should complete it, but it mentions the “witness.” This document is one of the worst I have seen–and, the space for the first witness signature seems to be an error–the language seems wrong. That’s why I used this example –to point out the flaws. The notary might want to fix it, but the middle of the document is NOT your territory. It’s my document, and I am still unsure about it!
I receive messages on social media frequently that declare things like–
“OMG! The person who needs this document notarized wants me to help fill it out. What goes in these blanks?”
Common standards of best notary practices have always held that a notary completes blanks in the notarial certificate—not the blanks in the body of the document. The signer completes the blanks that appear in the body of the document. If the signer does not know what to insert, the notary should not advise the signer. Where a document seems to have an error in the middle of it, the notary should be very careful mentioning this–we can’t advise signers. We don’t make suggestions or tell them what we think. If it is really an issue, encourage the signer to contact the recipient to discuss the document. For instance, in this case, the signer should probably reach out to the genealogy DNA website to express concern about the problems that seem to exist.
Important – you are on your own in situations like this.
- You are not acting as a signing agent where you have may have received training.
- You have not been trained to point out vital bits of information on a Beneficiary of DNA Information document.
- There is no hiring party involved to review your work, so don’t assume you know better than the drafter of the document.
- If the signer is confused, encourage him or her to read the text near the blanks aloud to figure out what is desired.
- If all else fails, suggest the signer contact the person or company who will be the ultimate recipient of the document.
I understand that notaries want to be helpful. And, I definitely understand wanting to be paid for an assignment, but sometimes, you MUST walk away if the signer won’t accept that you cannot tell them how to complete blanks or another unlawful action is requested of you. It is important to only act lawfully. Helping your signers complete blanks in documents isn’t one of your duties. This can be considered the unauthorized practice of law. Put the problem back on the signer.
In this case, it is obvious that the blanks require a place and time. Give the signer time to read.
You are not expected to know!
Often, new notaries feel that they should know everything about every legal document. No. Even lawyers don’t know everything. Once you resolve any blanks left in the document by having the signer complete them, focus on the notary certificate because THAT’S what YOU need to handle properly.
Item #3 – Common witness questions from new notaries
When there is a line for witnesses, questions will arise. For instance:
“Does a Beneficiary of DNA Information need a witness?”
We aren’t lawyers. We only check ID and notarize documents presented to us, as long as they meet the criteria established in Item #1 above.
Here’s a good rule of thumb: If a document has a line for a witness to sign, the line implies that a witness is needed. The notary should not make that judgment call or answer questions for the signer about witnesses. More common questions that are asked by notaries in a case like the one we are looking at today follow.
“Do I have to provide the witness? Does the notary have to pay a witness? Do I have to see the witness’s ID?”
It isn’t required of notaries by law of any state to provide witnesses as far as I know , but check with your state’s laws. The same goes for paying the witness.
Now, as to whether the notary must identify the witness, you need to check your laws and with your state’s notary administrator’s office. I personally handle it like this: if the witness’s name is stated in the notarial certificate, there’s no question. The witness must be identified by the same standards as signers are handled since I am signing and sealing my certificate that says I saw Mr. Witness sign a document. If the witness is merely signing, as in this particular document, and there is no mention of the witness in my certificate, I still ask that the witness provide identification and sign my record book. My laws say quite a bit about credible witnesses and subscribing witnesses, but do not address this type of witness in this type of situation. YOUR laws may be different. Your laws may specifically state that any witness must be identified. Be sure to follow up and find out!
“Can a relative or spouse of the signer be a witness?”
Just between us, I’d prefer not to use a spouse or relative of the principal signer as a witness on anyone’s document. But, I am not an attorney and if my notary laws don’t require me to avoid family members as witnesses, I cannot impose my beliefs on a signer. YOUR laws may be different.
Our notary authority stops where our notary laws do. We can’t enforce best practices on a signer if the law doesn’t support it. We can request certain things, but I’m careful not to insist on anything that my laws do not support.
If you do not know where your notary authority begins and ends on any certain topic, dig until you DO know the answer.
- Do your notary laws mention it specifically?
- Has your state notary office has made a rule about it?
- Did your personal lawyer advise you on the topic?
Ask your state’s notary officials about questions like this! Know what you can and cannot require. And most importantly, know what is required of you and know where your authority ends.
“How old does a witness have to be?”
This is not the notary’s concern unless it is addressed in an affidavit the witness is swearing to, or there are rules published by your notary public administrator or in your notary laws.
Many notaries insist that notaries must be 18. However, in Texas, the age of one who lawfully witnesses a will is over the age of 14 years old. The only reason that Texas notaries are aware of this is because it is written in the self-proving affidavit attached to the will—you can’t miss it. I included this to encourage you not to assume that in all states, witnesses must be 18 years of age, or that they have other restrictions. Notaries are expected to know their notary laws–both what is in them and what is not. Be careful of what you think you know…and realize that most people on social media are in the same boat you are. They do not know the answer! Unfortunately, many of them use the “Ought to Be” method to answer your questions. They tell you what THEY think that it OUGHT TO BE! Don’t fall for it. You must learn where your laws are and how to rely on them as well as your state’s notary public offices. The distribution of wrong information about notary practices on social media is alarming, so play it safe and go to your top source every time.
Item #4 – “Does the witness have to sign in my presence? How should she sign?”
My answer: Generally speaking, if a notary sees the signer executing a document, the notary would also see the witness signing the document.
As to how the witness must sign, it’s not really our concern for all the reasons mentioned in answer to Item #3. You are not acting as a notary signing agent who must request that borrowers sign loan documents a certain way. You do not have the authority to state how a document must be signed unless your state has specifically given that authority to you.
Item #5 – Questions about the signature lines in the document.
The way this document is set up, the blanks do not appear to be a notary problem. It isn’t part of the certificate and the one signing in that area isn’t stated to be the notary public.
Item #6 – Questions about the witness’s signature lines.
Again, in this area, the signer and witness should know what to do.
It is part of the document, not the certificate. Stay out of it.
Item #7 – A new notary who wants to handle this step properly will ask “How do I complete this notarial certificate?”
New notaries send me images frequently of their notarial certificates asking for help on them. Some are fairly easy to figure out because they are worded just like they should be. However, I see piles of notary certificates that are not constructed properly. Yet, some notaries will unlawfully stamp and complete badly formed documents like this one because they have not learned how to perform as a notary.
Look carefully at the area where I’ve inserted two red #7s.
There is not a venue (State of __ County of __). There’s no name of a signer, date of signing, or even any basic notarial language. It is NOT a certificate. We cannot even tell what type of certificate it would be!
As stated above, a lawful notarial certificate must be present before a notary can perform a notarization, and there is not one. Since no certificate is attached to this document, the notary should show samples of a certificate of acknowledgment and a jurat to the signer. The signer must pick the certificate. The notary will complete a proper notarial act according to his or her laws.
Since the blanks are intended for the notary, I would feel comfortable writing “N/A–see notary certificate below.” on those lines and initialing the insertion.
Item #8 – The password blank poses a problem.
The signer will not want to share the password with the notary, but the notary CANNOT notarize a document with a blank. It would be an incomplete document.
If this procedure is not prohibited by your state laws, explain the problem and ask if the signer could write in the password and partially cover it with a sticky note so you know it is not blank.
In closing —
Please understand that your notary laws protect you by limiting the activities you are allowed to do. If you take on more responsibility than your laws allow, you increase your liability needlessly–and in most cases, you are operating illegally.
- Knowing your notary laws is critical.
- Protect your commission — Notary.net provides excellent training! I have taken it and it is a great course. Please take this course or one of equal quality.
- Also, make sure you have adequate errors and omissions insurance, especially while learning your laws and authorized duties.
There is more to notarizing documents than tips from social media friends, stamping, signing, and collecting your fee!
Stay legal and stay cool in this blazing summer heat!
Until next time!
- Some states allow the notary to make a true copy attestation or certification of personal documents. The notary may be able to issue a certificate about this procedure as an authorized and legal act without a signature on a document–it depends on the state’s laws.
One nice thing about CA law. We don’t notarize documents, we notarize a persons signature and verify their identity. Of course, the notarial statement doesn’t match CA law either. If this document was presented to me, I would have to attach a loose certificate. Thank you for the crazy things you find for us to read about.
Robert, I appreciate your input on this. It was tough to decide on a title for this article so I went with the most common way that notaries ask questions about this topic. As far as “crazy things to read,” you have made my day!
as always, thank you for this very informative info. Since I will be moving to TX soon I was surprised to find out that a witness can be 14.
Hi Carol! I have never encountered a witness that young in all of my days of notarizing wills. And, I would not quote that as “witness law.” It is just what the self-proving affidavit says.
Prepare for the summer heat! It’s stifling!
This form is a big mess, apparently created by an incompetent legal document preparer.
It appears that blank #3 should be labeled as Donor name, not Witness name.
The phrase Signed, published, and declared makes no sense. A published document is made available to the public, such as a real estate deed recorded in the public records. A signer would not publish a private document containing a DNA account number and secret password.
The notary must know the definition of the Unauthorized Practice of Law for their state. It varies by state and may include giving legal advice, legal opinion, selecting or completing legal forms for a person, or recommending a legal course of action to take.
It is not the duty or authority of a notary to give advice on how to fill out blanks on a legal form, other than they must not be blank.
The signer should direct questions to the document recipient, or check their DNA account website for form instructions or a sample completed form, or ask a licensed attorney.
There is a much better-written version of this form available online, DNA Account Beneficiary Agreement, that is triggered by death or incapacity, with no witness and a typical notarial certificate.
Jerry Lucas, ABC Legal Docs, LLC