There are rare situations when a person needs to have a document notarized, but cannot appear in person before the Notary. If this happens, some states permit the signer to sign the document in front of or acknowledge signing it to a witness. The witness — not the signer — appears before the Notary.
The Notary identifies and administers an oath to the witness. Then, the witness signs the document. Based upon the witness’ oath, the Notary performs the notarization. This is called a proof of execution by subscribing witness.
But there are restrictions and specific requirements for this act. Here’s what you need to know.
Restrictions On Proofs
The most important thing to remember is that proofs of execution are one of the only times a document signer does not appear before a Notary to have their signature notarized. While you must be careful when performing any notarization, this is even more important when you perform a proof.
Not all states allow Notaries to perform proofs; most Notaries in states that allow proofs don’t know that they can perform them. This is often because they are included in real estate statutes or some other obscure part of the code rather than Notary statutes.
Because the signer is not present, states often have strict criteria for using subscribing witnesses. Here are some examples:
- California requires a subscribing witness to be identified by another credible identifying witness who is personally known to the Notary. The credible witness must present an ID card allowed by law to the Notary.
- In Texas, the subscribing witness must either be personally known by the Notary or be identified by another individual the Notary knows personally.
- In North Carolina, a subscribing witness cannot be a grantee or beneficiary of the document.
- In Pennsylvania, the subscribing witness must be an attorney licensed in Pennsylvania.
- In Tennessee and Virginia, two subscribing witnesses are required.
Other states, such as Florida, do not permit Notaries to perform proofs of execution at all. Always check your own state’s rules first before accepting a request to perform a proof of execution.
Real Estate Documents And Proofs
Due to risk of fraud, California prohibits its Notaries from performing a proof of execution on powers of attorney, on documents requiring a thumbprint in the Notary’s journal or on any instrument affecting real property. Certain real property documents — decrees of foreclosure, non-judicial foreclosures under California Civil Code 2924 or deeds of reconveyance — are exempt.
Conversely, Oregon law permits proofs of execution to be used only for real estate transactions, but state officials recommend that Oregon Notaries consult with the Real Estate Division if it comes up.