How to know whether you need a notary or a witness (or both)
Most of the time, legal documents require more than just a simple signature to be considered legitimate. For many important legal or financial documents, a witness must be present at the time of signing to ensure the identity of the signers. Though notary and witness services do serve similar purposes (and occasionally overlap with each other), serving as a witness has its own unique set of requirements.
In this blog, we will take a look at why and when a witness is required and the different kinds of witnesses.
- What is a witness, and what do they do?
- When do you need a witness?
- The different types of witnesses
- Can a notary be a witness?
- How to notarize documents online?
1. What is a witness, and what do they do?
A witness is a person who is present to observe the signing of a legal document. Out of necessity, they are neutral third-party observers of the signing. This means they have no relation to the signing parties and no connection to the transaction. A witness will provide a signature as well to verify the authenticity of the signing.
A witness’s primary role is to confirm the identities of the signing parties and the validity of the signing. This is necessary in case there is ever a dispute with the document. As a neutral third party, witnesses provide a necessary level of credibility to ensure that the document is recognized and legally enforceable.
There are a few different types of witnesses you should be aware of, which we will take a more in-depth look at below. Before we get to that, let’s first get a better understanding of what types of documents typically require notary and witness services.
2. When do you need a witness?
Not every document signing requires a witness, and in fact, many do not. Signatures that do require a witness are usually legal or financial forms, such as:
- Last will and testament: Legal documents which detail the intended distribution of assets from an estate.
- Divorce decrees: A document issued by a court granting a divorce.
- General contracts: Documentation of an agreement or promise which is enforceable by law.
- Mortgage agreements: A document that specifies your mortgage loan terms and agreements.
- Property deeds: Documents that are used to transfer ownership of real property from seller to buyer.
Documents that require a witness signature have different requirements depending on the jurisdiction they are in. For instance, some signings may require multiple witnesses to be present. There are also different types of witnesses that are necessary depending on the situation. Check these requirements to ensure the validity of your signature.
3. The different types of witnesses
Different types of documents may have specific witness requirements. These requirements vary by state and jurisdiction, as can the stipulations for who qualifies to be a witness. To give you a better understanding of how and why this works, let’s check out the different types of witnesses you may require.
Credible identifying witness
A credible identifying witness is an individual who personally knows a signer and vouches for their identity. This is usually needed in cases where a signer does not have a satisfactory form of personal identification. A credible identifying witness will typically be someone who knows a signer personally and is willing to confirm their identity under oath.
Many jurisdictions require that the credible identifying witness personally know the notary as well. The requirements for fulfilling this duty can vary greatly depending on where you are located. Some states have laws restricting credible identifying witnesses who are connected to or stand to gain from a transaction.
A document witness is an individual or notary who is asked to serve as a witness to a document signing. This specific type of witness usually refers explicitly to an acting notary who has also been asked to serve as a witness. This means that in addition to their official notarization duties, they serve as a witness as a private individual.
If that sounds a little murky to you, you aren’t alone. Many jurisdictions do not allow for a notary to also serve as a witness because of the potential for a conflict of interest to arise. Even where it is technically legal, it is generally considered bad practice for a notary to fulfill both duties.
It is best to ensure that a witness is an entirely neutral third party, if possible.
A signature witness is unique because it is one of the only types of witnessing that is considered an official notarial act. A signature witness is a notary (or other authorized officer) that personally verifies the signer’s identity while obtaining the signature. The document must be signed in the presence of the notary at the same time as identity verification.
This type of witness is only allowed in certain jurisdictions and situations. It’s important to note that this is different from when a notary is asked to serve as a witness in a non-notarial capacity (see document witness above).
A subscribing witness essentially acts as a proxy on behalf of the signer. Their job is to physically watch the signing of a document and then appear before a notary on the signer’s behalf. The requirement for being a subscribing witness is that the witness is present for the actual signing of the document or for the signer to confirm that the signature is theirs.
A subscribing witness is required when a signer is unable to appear before a notary for whatever reason. This type of witness has the highest potential for fraud. Because of this, many jurisdictions limit how and when this type of witness may be permitted.
Signature by mark witness
When a document signer is unable to sign their name, a signature by mark witness is required. If, for example, an individual is only able to sign with an “X” instead of a name, the signature will need to be verified.
A signature by mark witness needs to be present when the signer makes their mark.
4. Can a notary be a witness?
Most legal systems let a notary to act as a witness. A notary cannot often notarize a document that they have witnessed. An interest conflict would result from that.
It is essential to clarify that notary and witness services are usually two separate things. Though there is occasionally overlap, the difference between a witness and notary comes down to the extent of their respective duties. A notary’s job is to ensure that the document is valid and that the signing is carried out legally. Notaries are public officials with a certain level of authority conferred by the state they operate in.
On the other hand, witnesses are not necessarily public officials, and usually, their role in document signing is limited. There are few requirements for many types of witnesses, and generally, anyone of sound mind over the age of 18 can serve one. Most witnesses do not need to understand the contents of the document or any details of the proceedings. Their primary job is simply to observe the signing and confirm the signing parties are who they say they are.
Whether or not a notary can serve as a witness depends on the jurisdiction they are serving in and the type of witness required. Some states allow a notary to serve as a witness to a document they are notarizing, while others do not. Due to the potential conflict of interest, notaries usually serve one role or the other, but not both simultaneously.
5. How to notarize documents online?
Before COVID-19, the shift towards making notary and witness services more accessible online was already underway. As the pandemic had many businesses shuttered for months, the need for online notary services continued. The demand was so overwhelming that it prompted a new senate bill called the SECURE Act, which aims to expand online access to these services.
Where many walk-in, traveling and mobile notary and witness services struggled to keep up, more people began to trust and embrace remote online notarization (RON) services. Using a RON allows you to obtain legal notarization services from anywhere within minutes. More than that, it saves you time and money. Learn how here.
Ultimately RON services have allowed individuals and businesses to keep the wheel turning despite the pandemic’s interruption to our everyday lives. As legislation continues to favor RON and people discover how easy it is to use, we will likely begin to see this become the new norm for notarization and witness services.