16 May THE STAMP OF APPROVAL? 5 COMMON MISTAKES OF NOTARIES
Although you might think something as simple as the act of notarization would rarely result in a problem, careless errors are frequently made. The following are some of the errors we have recently seen or other common errors in connection with notarization:
- Failure to require personal appearance. Although during the pandemic the governor has issued a temporary order permitting audio-video notarization of Wills, financial powers of attorney, medical powers of attorney, directives to physicians (living wills), and oaths of executors, administrators and guardians and although Texas does permit online notarization with stricter requirements (even if there was no pandemic), normally the person signing a document must be present at the time of the notarial act. The notary can have liability if they ignore the personal appearance requirement.
- Incomplete acts. This week we noticed a notary failed to either date the document (a deed) or to write the signer’s name into the notarial certificate. Sometimes notaries fail to write or even sign their own name. As a result, if the document had been sent for recording (we requested the client to re-sign the document before the notary and requested the notary be more careful), it would likely be returned by the county clerk as “incomplete”.
- Failure to get signer’s ID. Laws of states often require the signer to provide photo identification (i.e., driver’s license, passport, Texas identification card, etc.) as well as sign the notary public book. A failure to do so could result in a fact issue if there is subsequent litigation. For example, if there is a Will contest, a litigator might review the notary book to see if the necessary formalities were fulfilled.
- Using the wrong seal. Sometimes the notary, by error or mistake, uses an out of date seal or even a seal for another state. This week we saw a Last Will and Testament signed by a Kansas resident (who recently resided and died in Texas), but the notary used a Missouri notarial seal. As a result, we will likely need to find one of the witnesses and either fly them to Texas for a probate hearing or take a deposition of the witness simply due to the Missouri attorney’s failure to be detailed. There is no reciprocity between Missouri and Kansas for notarial acts. Thus, although the Will may be valid, testimony will be needed by one of the witnesses or the notary to confirm it met the requirements of Kansas law. This would have been avoided if the notary was licensed in Kansas and used a Kansas notarial seal.
- Performing wrong notarial act. Some documents (like a deed) only need to be acknowledged whereas other documents need to be “sworn to” (like a Will). If you do the wrong act, it could result in a legal challenge. So, for example, if the notary only acknowledges a testator signed a Will, the judge will likely require a witness to testify for the Will to be determined valid resulting in unnecessary delay and costs.
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