What Exactly Is a Notarized Document?
A notarized document is a legal document that has been officiated by a notary public. In order to notarize a document, the signer must present the document to a notary public with a valid photo ID, either in person or electronically through e-notarization. The notary then verifies the signer’s identity and his or her willingness to sign the document without coercion.
Notarization serves several essential functions. Not only are notarized documents less likely to be fraudulently altered or improperly handled, but the process of notarization also allows the notary public to take special caution to identify the signers of notarized documents and ensure that they are aware of what they are signing.
While notarization is standard practice for a wide variety of legal documents, it isn’t mandatory for every document . Even without a notarized signature, contracts and agreements can still be valid. However, notarization may be required for certain documents, such as quit claim deeds or transfer-on-death deeds, that must be recorded with the county clerk in order to be valid. Likewise, notarization is typically required for powers of attorney, wills and trusts, and any other documents that may be relied upon by a third party. Notaries often also see clients for travel authorizations for minors, elderly care authorizations, and affidavits or declarations.
Notarized documents are considered self-authenticating, meaning that no further evidence is required to certify the authenticity of documents that have been notarized. Because notarization is recognized and regulated by the states, notarized documents can be processed quickly and efficiently across different jurisdictions.
The Legal Implications of Notarization
The process of notarization was first used as early as the Roman Empire, and has survived for about 2,000 years. Hints of these notarial practices can be found in ancient Greek writings and in the Bible. It is safe to say, then, that the underlying purpose of notarization has not changed over the millennia: a notary public, or other authorized individual, witnesses the signing of a document and then attests to its authenticity by signing the document and affixing his or her official seal. By doing so, the notary public is vouching for the fact that the person who signed the document is indeed the person who represented him or herself to be.
However, notarization does not actually make a document legal. Rather, it is simply a way of authenticating the signature of an individual. Practically speaking, this can be a significant obstacle for any would-be fraudster who is attempting to use a forged signature to alter a document and gain improperly at someone else’s expense.
Notarization and legalization are not the same thing, nevertheless. Just because a document has been notarized does not mean it has been legally validated. In fact, there is an important distinction between the two terms.
Authentication refers only to whether the notarized signature on the document is valid. A notarization can be requested for any number of reasons related to signature verification. Validation is a more significant step toward the legalization of a document — in essence, it moves the document from being an ordinary or unofficial document to an official and legal one.
An example of validation is when an apostille is requested, which is a form of certification of the signature of an official authority, such as a notary public. Validation assists in moving a document even closer to the point of legalization, but it does not necessarily lead directly to the legalization of a document.
The Difference Between Notarized and Legally Binding
The difference between the two often gets lost in the process of receipt and execution, as signatures provided above and after the stamp that says "Notary Public" are often the only thing needed for a transaction to be legal. E-commerce has revolutionized how contracts are created and signed in the modern age, as far fewer transactions require live physical signatures. Even in the context of technology, however, notarization and validity are not interchangeable.
A legally binding document is one that meets certain criteria, such as mutual consent (or an agreement), lawful purpose, competent parties, consideration (or value), certainty and specificity, and in most cases, the voluntary nature of the agreement, among other factors.
A document may be legally binding even without being notarized. A notarized document, on the other hand, is primarily considered to simply be a legally binding document that has been validated by a third party (the notary). In other words, notarization may help make a legally binding document more legitimate in the eyes of the law, but it does not necessarily automatically make it legally binding.
When Does Notarization Matter Legally?
Not all notarized documents are necessarily legal. There are many instances when notarization of a document does not make it legal. However, there also a number of key moments when notarization is essential to the legality of a document and an agreement. In these instances, a notary can help lend legitimacy to otherwise illegal agreements.
Real estate. A couple signing a mortgage loan may not realize that their signature of the loan agreement does not complete the transaction. The deed whereby the mortgage loan is secured must also be notarized in most states, including Texas. Some lenders are lax in this regard, failing to have a notary present when the signatures are affixed, or leaving the notarization up to the homeowner. If the homeowner fails to procure a notary, the document may later be found invalid in a foreclosure action. Such was the case with a couple in Colorado whose mortgage was set to close. The lender in this case was negligent in not requiring the borrower’s signature to be notarized. The homeowner later began to counsel homeowners and reveal the fact that notarization was required. This resulted in an action by the bank to foreclose on the property. The homeowner defended this foreclosure by arguing that the initial transaction was void because it was not secured by a notarized mortgage. This defense was upheld by the court and the judgment was reversed. Had the bank been diligent in securing the notarization of witnesses, this result could have been averted.
Wills. Notarization is often not required for a will to be valid. However, notarization can add an extra layer of legitimacy to a testamentary document such as a will. Only state law determines whether a notarization is required, or whether it provides any increased effect. There are also a number of other requirements for a will to be legal. The will must be in writing, and generally must be either signed by or on behalf of the testator in the testator’s presence, and must also concurring signatures of at least two witnesses. The two witness requirement is sometimes staggered based on how the will is composed. In California, for example, there is an option to prepare a holographic will composed entirely in the testator’s handwriting. Texas, on the other hand, has gathered that these types of wills are often not properly written and therefore have recently added a requirement for notarization and signing by a witness in lieu of a second witness’ signature.
Contracts. Certain contracts require notarization for their legality. In many states, automobile sales contracts must be notarized. In Texas, this is not the case. As a "conditional" sale contract for automobiles, the contract is treated as a form of personal property security and is governed by Texas’s version of UCC 9. Some real estate contracts fall under a similar category, and for those reasons, such contracts require notarization to be valid.
Notarized Documents: Common Misunderstandings
Let’s take a closer look at what people get confused about when it comes to notarized documents:
Myth No. 1 – A notarized document is a legal document.
Not necessarily. While notarization adds a layer of credibility and security, it doesn’t automatically validate the legality of the document itself. Notarization does not create a legal existence. For example, a notarization does not transform a rental agreement from something that’s illegal into something that’s legal. What a notarization does is confirm that the person signing was properly identified by a trusted entity, the signature and date are accurate and those elements should be considered for all intents and purposes as present on the document. The notarization, however, does NOT mean it is a legal document. It just means the notarization is accurate.
Myth No. 2 – An attorney has to notarize my document.
Another misconception here. An attorney does NOT have to notarize a document. In fact, some people specifically go out of their way to not have an attorney act as their notary because they want to keep that attorney-client privilege intact. Why? Because even if an attorney is holding the document, they don’t have to keep any details about the document confidential. You don’t need an attorney to notarize a document . An essential part of the notary public function is to confirm the identity of the signer and their willingness to sign the document. That is the reason for notarization. An attorney does not have to stay privy to the contents of the document.
Myth No. 3 – A notary is required to authenticate my document.
That is not true. A notary does not have to authenticate your document. What it will do when you provide the document to the notary public is notarize the document, which is different than authentication. Notarization is just an individual or entity verifying the authenticity of the identification card presented (someone who is recognized by the state) and then placing their seal on the document stating they saw the document being signed and they confirmed the identity of the signer via their identification card.
Authentication is on an entirely different level.
Myth No. 4 – The cost of notarization is always the same.
Nope. It varies. Fees are usually outlined in the Secretary of State’s Notary Fees schedule. For instance, in California, the cost is limited to $15 per signature, but only if you’ve signed the document in front of the notary. So this can alter your fees. It’s a good idea to check with your notary to clarify ahead of time what they are going to charge.
What to After You Get a Document Notarized
After getting a document notarized, there are several important steps you can take to ensure that your notarized document will achieve its intended legal purpose. Keep in mind that notarization does not make an otherwise illegal document legal; rather, notarization merely makes it easier for others to trust in the authenticity of the document.
The first step to take after getting a document notarized is to make copies. It’s crucial that you maintain a permanent record of the notarized document for your files, which might be useful if the document is ever lost, or if you need to have it notarized again in the future. In addition to having a hard copy, you should definitely keep a digital version of the document on your computer.
You also should follow up with the notary and confirm that the document has been stored properly. Notaries are required to keep a detailed record of every single document they notarize, so even if your document is lost or destroyed, the notary should have another copy available.
If your notarized document has to be filed with any government agency, such as the county clerk or the state, you should be sure to do so promptly. Some documents have strict requirements for when they must be submitted following notarization.
After confirming the date of your notarization and making copies of your notarized document, you’re all set. You can rest assured that your notarized document is good to go.
Conclusion: Notarization and Legality
In this article, we have discussed the nuanced relationship between notarized documents and their legal standing. It’s clear that notarization is often a necessary step in the formalization of legal agreements, whether they be loan documents, property sales, or estate planning instruments. However, the process of notarization itself does not bestow absolute legality to the document.
We established that a notarized document is typically one that has been signed in the presence of a notary public, who then adds a seal or stamp to verify the authenticity of the signature. This process is meant to add a layer of verification to the execution of the document. Yet, it’s essential to remember that the notarization guarantees only the authenticity of the signor’s identity; it does not affirm the content of the document itself or its compliance with local laws.
When it comes to specific agreements, the importance of notarization can vary. For example, a simple contract or agreement between two individuals may not require notarization to be legally binding . On the other hand, real estate deeds, loan agreements, and advance medical directives commonly require notarization to be considered valid and enforceable. In some states, close family relations may be exempted from having their signature notarized.
It’s also important to note that a notarized document can be challenged in court. While the document will hold significant weight due to its verification by a notary, it can still be proven to be invalid in a legal proceeding under certain circumstances. Furthermore, once a court enters a judgment, that judgment is considered an authenticated document, which means it does not require notarization for it to be upheld in a court of law.
Given the complexities involved, it’s critical to understand the legal implications of notarization. Knowing when it’s a required step, and when it isn’t, could mean the difference between a legally enforceable document and a piece of paper with a signature on it.
No Responses