Understanding What Notarized Means
Notarization is basically a highly regulated process that mandates a document signer to appear in front of an individual, called a notary public, with the notary verifying that the individual is indeed who they claim to be. As an example, in the state of California, the California Notary Public Handbook published by the Secretary of State defines the process succinctly:
A notary public may take an acknowledgment of a signature on a document. A signer generally uses this type of notary when he or she needs to document the voluntary and genuine nature of a signature on a document that has been prepared and presented by a third party. An acknowledgement requires the signer to appear in person, in front of the notary public, and to sign the document before the notary. The notary is required to obtain satisfactory evidence that the signer is who he or she claims to be.
A simple notarization, then, is a verification of identity. That’s the purpose of the document in question – to establish that the person who signed it was the one who purported to do so . However, along with this, the notary public must also be aware that the document being signed could contain any provision to make claims that would affect third parties, or that could be construed as a legal contract. Though the notary public does not have to know the contents of the document, they are responsible for determining that the signer understands the implications of what they are signing.
A notary public is not a lawyer nor does a notary public have to be an expert at document review, as long as they know how to spot basic issues that give them "cause to believe" that fraud is being committed, i.e., that the individual is a fake or the document is false. Some examples of these issues may be that there is fraud in the notarized document itself, the wrong notarial wording is used in the document (i.e., it’s not the notary’s section), or if the notary has prior knowledge that the document signer is at a disadvantage or under duress.
Notarized Vs. Legal Document
Notarized Documents vs. Legal Documents
The lines between notarized documents and legal documents can be blurry. Notarization is just one aspect of making a legal document; it is not the creation of a legal document in and of itself. Many people have heard of the notion of creating a contract and allowing a notary public to witness the signing. Once the individual has signed the document in the notary’s presence, the notary will then notarize the document. The document at that point becomes a legal contract. For example, if someone is selling a car to another person and they both agree to the sale price, the parties are entering into a legal contract. To make it "official," they would need to sign the contract and have the notary public witness the signing of the contract. When the notary public stamps the contract, it makes their signature official and the contract binding upon both parties. For legal documents that need notaries, there is an entire section dedicated to this particular topic in the back of encyclopedias. A legal document is any document that has been signed and is enforceable in a court of law. Commonly, legal documents are created for real property transactions and include mortgages, promissory notes, deeds, security deeds, easements, and contracts. In order to be legally binding, a document must include several requirements; a person must offer something up, such as money or property, and the other person must accept the offer. If one person walks away from the transaction, the person who made the offer may file a lawsuit, or the attorneys may mediate the dispute. The purpose of each contract is that once the person signs the contract, they are legally bound to it. In some cases, a document must go beyond being acknowledged by a notary public. Instead, there are documents that must be recorded with the county Recorder of Deeds. In addition to being notarized, documents such as a Certificate of Trust or a deed must be recorded. Depending on the particular situation, a notary may even need to take an oath of office or say certain lines in a document. In order to be a valid notary, a person simply must witness a signature on a document and attests to the fact that the signature belongs to the correct person. If a notary has not done their job correctly, then they are not protected from personal liability under the law. If a notary makes a mistake on the document, and the person is found to have lost money due to that notarization, then the person can bring an action against the notary public personally.
When You Need a Notarized Document
Certain situations require notarized documents to be legally binding. For example, a deed used in a real estate transaction typically requires authenticity since it’s a required document for a property transfer, as mentioned above. Similarly, a person must sign a will in front of witnesses who can attest to its authenticity.
Affidavits, which are used in many legal situations, require notarization, the act of having an official record of the signing process in order to provide official proof that the document is legitimate. A good example could be to correct a defect in the name on an original birth certificate due to a mistake made on the document or a subsequent marriage or divorce. In this case, the affidavit (which is a legal document signed under an oath) provides a way to provide enough information to correct the original document.
In Pennsylvania, they ask that a Parent/Guardian Consent Affidavit form be notarized in order to ensure its legitimacy. The parent or guardian must sign it in front of a notary, which then becomes part of the child’s permanent record. This correctly gives consent for the underage child to receive and participate in certain services.
Notarized Documents – Legal Requirements
Notarization does not mean that a contract is legal and binding. While notarization authenticates the identity of the signing parties, it does not attest to the legality of what the parties are agreeing to. A notarization is not a guarantee that a contract has even been entered into or that the terms have not been misrepresented. The stamp of the notary public will mean different things in different jurisdictions. In other words, the notary signature’s meaning depends on the laws of your state.
The National Notary Association (NNA) reports on its website that there are six items that an individual or organization needs to provide the notary to complete the notarization process:
If any of these are missing, your notarization may fail to meet state law requirements. Does that mean you can’t get a case dismissed? Not necessarily. But if you have a notarized document that is disputed and does not meet your state’s notarization requirements, the judge may find that it does not carry much weight.
Confusion about what a notarization entails and guarantees is common. For example, the mere fact that the signature is notarized does not mean that the document is legally enforceable or that it confirms the authenticity of the document. As mentioned above , a notary public only certifies that the correct party signed the document in front of you.
A notary has very specific qualifications and a very specific role. Part of your state’s laws applies to notarization is meant to prevent fraud in legal documents.
While many states have attempted to standardize the notarization process, not all states follow the same laws. That means that if you live in one state but the other party to the contract lives in a different state, those laws might not be consistent.
If you are a resident of one state and you want to file a lawsuit in another state, the court may not allow that because of the way the laws are written. It doesn’t matter whether you’ve completed taxes in the state. You still may owe taxes to the other state because your business falls under its jurisdiction, for example. That means having a notarization from that state might be more important than the one where one of you lives.
Even if the notary certificate is written in one language, if the notary is not fluent in that language, then the notarization may not be proper.
There is a misconception that the original, signed copy of a notarized document keeps its validity until the notary resigns or dies. But this isn’t the case. Notarization is not like a seal that protects information.
Additionally, the document does not have to be valid indefinitely. A notarization extends only to the date the notary performs the act.
How To Make Sure Your Document Is Legal
Larger issues aside, in order to ensure that your document is legally binding, you’ll want to have it notarized. Failing to notarize a document makes it invalid. That said, it’s not enough to simply have it notarized. The contents of the document, as well as your role in signing it, all play a critical role in determining if and when your document is legally binding.
A signed document is legally binding when: It is clear that the signers had, at the time of signing, the intent to "create" the document. A document that is signed with no expectations to hold any power in the future is merely an informal agreement. For example, a real estate purchase agreement must be voluntary and intestate on the part of the buyer; in order to be legally binding, the buyer must intend to purchase the real estate.
"Contracts typically include a clause saying something like: "This agreement is binding upon the parties hereto and their respective heirs, representatives, successors, successors-in-interest and assigns." In the absence of a clause similar to this, the original parties to a contract are the only ones bound by it. To extend the binding nature of a contract to those who inherit or purchase property from the original parties, an agreement must be recorded."
In order to avoid confusion later on down the line, demarcate any exceptions to the contract within the contract; for example, "all expenses must be paid by the buyer, with the exception of transfer taxes."
Why Notarization Matters In Legal Matters
In many legal transactions, notarization serves as a critical step in lending legitimacy to the process. Typically, all states in the U.S. require certain documents to be notarized to ensure that both parties—especially those with less experience with legal tasks—can get a document prepared by an experienced, unbiased professional who knows exactly how to dot all the i’s and cross all the t’s involved in preparing it. These requirements are put in place so that, during a legal process , documents are not signed prematurely or by unauthorized individuals—situations that could later prove difficult to rectify. Notarization is not something you should ever overlook when setting up legal documents. When working with a reputable notary, you will give the escrow officer peace of mind that the signers of the documents were properly identified, they have signed their documents freely, and they with understanding of the contents that they agreed to. Even though notarization is just a small part of a larger legal transaction, it can be the most important step of all in guaranteeing the legitimacy of the deal.