Can a notary also be a witness?
Signing your legal documents, such as a power of attorney or last will, is often the final step to making them official and legally binding. This is important as it brings the terms and conditions of the agreement into effect.
However, note that not all methods of executing and signing a legal document, such as a durable power of attorney, are equally binding and valid. Some legal documents, including a quitclaim deed and real estate documents, require a notary to be present and officiate and oversee the process while you and others sign the document.
In contrast, other documents, such as a power of attorney, require two witnesses or more to confirm that it was correctly executed and signed by all parties. You may have many questions as these legal requirements can be tricky to understand. For example, can a notary also be a witness? Can a notary witness and notarize powers of attorney or wills?
Technically, a notary public may also serve as a witness to a legal or financial document that they are notarizing. Actually, in some US states, it’s a common practice, particularly on real estate or property documents. However, keep in mind that Notary Public Underwriters cautions against this. This is because it is pretty easy to accidentally land in a situation where a notary unintentionally notarized his or her own signature.
Documents that require a witness signature have different legal requirements depending on their jurisdiction. Did you know that most US states require either an official notarization or a signature guarantee for dealing with legal documents?
While both signature guarantees and an official notarization verify and authenticate the identities of the signing parties, they usually serve different roles and also require different levels and type of oversight.
This is why depending on the legal document you need signed and notarized, you must know the differences between these two important and closely related roles to understand who can be a signature witness.
Can a notary also be a witness?
In most US states, a notary public can’t act in both capacities as an impartial witness and a notary public simultaneously in the performance of a notarial act. For instance, in Georgia, only one witness is required for an official notarial act, and that can’t be the notary.
You should know that the purpose of impartial witnesses is to witness that the signers acknowledge to the notary public that they signed the legal or financial document. Remember that the witness attests to the authenticity and validity of the signer’s signature to the document and adds their own signature.
On the other hand, some states, such as South Carolina, allow a notary public to serve as a signature witness. In South Carolina, at least two witnesses are needed by law for notarization. And out of these two witnesses, one can be the notary themselves. Similarly, if you’re in Florida, two witnesses are required for the legal procedure to be official, and one of the witnesses may be the notary public.
Florida allows any person to be a witness, provided the person is “competent to serve as a witness.” This means that a notary could be a document witness to a last will and testament in Florida.
However, in Florida, a notary public can’t both witness a will and notarize the same document or will. The issue is that the notary public verifies that the witnesses or signing parties are who they claim they are and that the witnesses actually signed in the manner mentioned on the self-proving affidavit. And the notary can’t verify that information about the same notary. This is because it would create a conflict of interest.
This is why most banks, credit unions, and other financial institutions have an individual on staff at each branch or location who is a notary public for the purpose of notarizing documents and forms for their customers.
What is the role of a notary public?
A notary has to be present in order to verify or authenticate the identities of the parties that are involved in an agreement or contract by checking or confirming their identification and making sure that all the signers know and understand the document as well as its contents. The main role of notaries is to act as an impartial witness to the signing of documents while exercising good judgment. Also, as state representatives, they shouldn’t let any self-interest, such as financial interest, interfere or affect their legal responsibilities.
So, when a legal document, such as a power of attorney, gets notarized, a notary attests to its validity and adequate execution. Notaries help execute a document legally; some legal documents require notarization. They aren’t valid and legally binding until notarized. This is where an online notary can help.
Some financial institutions and banks in the US require notarized legal documents to deter fraud. For instance, with a power of attorney, the notary public checks the identity of the individuals involved and ensures each of them signs the legal agreement willingly.
Another key benefit of using a notary public is that the signers don’t need to testify in court in order to verify their signatures. This is because the notary has already confirmed that the legal document is legitimate.
What is the role of the witness?
We can define a witness as a neutral third party who is present in order to watch signers execute any legal document, such as the last will. For witnesses to be valid, they can’t benefit from the agreement or contract in any way. They can also not be related to one of the parties to the agreement. For example, a beneficiary can’t witness a will in which they will inherit real property and other assets.
However, when it comes to signature witnessing and notarization, the term “witness” usually has multiple different meanings. For instance, sometimes, it means that a customer would like the notary public to serve as a witness. Note that it may mean the signer requires a witness in order to verify their identity. On the other hand, in many jurisdictions, it may mean a signer wants the notary public to perform a request that’s outside the notary’s official duties.
You may know that a witness must be 18 years old (at least) and of sound mind or mentally competent when witnessing a legal document’s execution. However, they don’t have to know or understand what’s in the document to be a valid and legal witness.
Witnesses to a transaction physically observe or watch the parties sign the document. Note that witnesses should also be able to verify or confirm the identity of both parties to the transaction. After that, they sign the document as witnesses to confirm that they saw each individual or party sign. Having a second witness to attest to the identities can be useful if there’s a dispute or issue regarding the contracting parties or the agreement.
Types of witnesses
Credible Identifying Witness
We can define a credible identifying witness as an individual who vouches for a signer’s identity.
Who is allowed to serve as a credible identifying witness?
It is worth noting that a credible identifying witness must know the signer personally. In some US states, the witness is also required to know the notary personally, or they must present an official ID to the notary.
Remember that several states, including Florida, and California, don’t allow a person to serve as a credible identifying witness if they have a financial interest in or benefit from the legal document being notarized. This means they should be a neutral third party.
If you are unable to personally appear before a notary in order to acknowledge your signature on a form or document, some US states allow a “subscribing witness” to watch you sign the document or take your acknowledgment and then appear in the place of a principal signer for the notarization.
Serving as a subscribing witness
To serve as a valid subscribing witness, an individual must have been physically present when the financial document was originally signed or should be there for the signer in order to acknowledge their signature to the witness.
Do you need a witness for your documents?
Many documents usually require witnesses, including the following:
- Mortgage agreement
- Last will and testament
- Divorce decree and property deeds
What is a signature guarantee?
You may have heard of the signature guarantee. It is a stamp or form of authentication used only on financial documents to prevent fraud. Many financial institutions, such as banks, and credit unions, use a signature guarantee.
The signature guarantee is slightly different from a notary stamp. Keep in mind that with a signature guarantee, the institution providing the guarantee (the guarantor) becomes responsible and is held accountable for the consequences and ramifications of a fraudulent signature. This protects transfer agents, stock issuers, and other similar parties against fraudulent transactions.
A signature guarantee, also known as a “Medallion guarantee” or “Medallion stamp,” is usually required when an individual investor decides to sell or transfer securities, including stocks and bonds.
A signature guarantor attests that the person’s signature is valid and legally binding and that the financial institution or bank will accept liability for any loss, forgery, or error. During this process, they will carefully review the paperwork and witness the signature. After that, the stamp will be applied.
In contrast, as notaries only represent themselves as an individual, the notary is personally responsible for the validity of their own authentication. If the individual is not who they claim they are, they may be liable.
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While a notary public may also serve as a document witness to a legal document that they are notarizing, this practice is discouraged. In most cases, a person cannot be both the notary and an impartial witness simultaneously in the performance of a notarial act. Depending on the legal document you’re dealing with, you will either require a signature guarantee or a notarized signature to execute the transaction.
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What is a witness signature?
A witness signature, as the name indicates, refers to the signature of a valid witness—in most cases, it is the notary’s signature. Note that signature witnessing is a crucial part of the notary process and is mandatory for recorded documents in many states, such as Florida, Georgia, Louisiana, and Connecticut. Find out more about witness signature vs. notary.
Can the notary be a witness in Georgia?
Notaries Public in Georgia has the authority to:
- Witness or attest signature
- Take acknowledgments
- Witness affidavits on oath or affirmation
However, a notary who is named as an agent in a power of attorney would have a disqualifying interest and mustn’t be an attesting witness.
Who can be a witness for a notary in Florida?
Florida requires two witnesses for financial and legal documents. One may be the notary public, while the other person can be a private individual or someone the signer knows, like a relative, neighbor, or friend, provided they aren’t involved in the transaction
Can a notary be a witness in Colorado?
In Colorado, a notary can serve as a witness. However, if the notary witnesses a document, they can’t notarize that document.