What is a Notarized Document?
Notarized documents are legal documents that are executed or "notarized" before a notary public. Notaries public are official and authorized representatives of each state with the primary objective of preventing fraud. A notary public must be impartial and unbiased, and they cannot "receive" anything from the individual whose signature is being verified.
By performing a simple sort of faith and trust, a notary public verifies and witnesses the execution of a legal document. Typically, the notarization process creates three documents; the original for the person executing the document, a "witness" copy for the notary to retain in their personal records, and the third copy is submitted to the appropriate state repository (where the notary is commissioned) for safekeeping and recordation . The process is simple: the signer produces an appropriate form of identification, usually a state-issued driver’s license or ID number; the notary examines the document and explanation of the document to determine if there are any "red flags" that might indicate that the signer does not wish to enter into the deal; and then the notary places his or her seal on the document next to the signer’s signature and records the transaction for their personal records.
More and more, people have begun to use notaries public to verify copies of some important documents such as copies of last wills and testaments. The notary public’s job is to bear witness to the fact that the signers of the original document did indeed place ink to paper, thereby making the legal instrument a binding force of law. A notarized document is an original earnest document that can be produced when needed.
To be certain, not all documents should or need to be notarized. A notarized lease agreement, for example, does not give the landlord any more "power" over the person signing it. A court order is far more enforceable than any notarized document.
The Legal Weight of Notarized Documents
A Notary public authenticates documents by adding a seal or cybersignature, along with his/her signature, after identifying the signer of the document and witnessing the signing. The essential action by the notary is to verify the signer’s identity for the purpose of entering into a contract. Since a notary’s verification of identity is subject to fraud, by law they are required to obtain sufficient proof of identity before performing their duties. Proof of identity may require reviewing an ID, passport, or other suitable form of ID that contains a photo, signature, and physical description of the signer.
Providing access to your account through online services for your clients, sending them the instructions to pay you, and having a notarized, encrypted, networked, and time-stamped KYC (know your client) document should make it difficult, if not impossible, to deny a transaction occurred. It will have to be proven in a court of law who really owns the signers’ KYC document and if they had the intention to share or deny the instructions to pay you.
A notarized document is presumed valid in all US courts and can be admitted into court without further authentication. A notarized document is also self-authenticating under FRE 902. The authentication process requires the proponent of the document to establish its authenticity. This becomes easier when the photocopy of a notarized document shows the original stamp and signature of the notary. The original paper copy must remain with the proponent of the document so they can acknowledge that the notarized document is the same as the copy submitted to court. The notarial act, including the identification of the signer and the original signature, would be sufficient unless there was evidence otherwise.
A notarized document is often accepted as a presumption of genuineness of the document by courts and administrative agencies. This reliability, however, does not detract from the judge’s discretion to rule against the notarized document when there is significant evidence to the contrary. When a notarized document is challenged, the primary focus will be whether the document’s authenticity can be authenticated.
In the event that a notarized document is denied, it is within the judge’s discretion to uphold the notarization regardless of the objection. The presumption’s strength may be weakened by an allegation of negligence of the notary, or retraction by the subject of the notarization, which could nevertheless be rebutted.
The main functions of a notary is to confirm the signer’s identity. A notarized document is presumed valid either under the law or by presumption of genuineness.
When Do Notarized Documents Matter in Court
There are certain situations when having notarized documents can be pivotal when you go to court. The following are some examples:
- Wills – Notarization is not required for a will to be legally binding, but notarization adds another layer of verification. A court may appoint a trustee to manage funds for children until they reach adulthood, and if that is the case, the trustee will need a copy of the legally binding will. If an adult is named as guardian, a judicial proceeding must occur before the court gives the person any power over financial or health care issues for a minor child. In this case, a notarized copy of the will would be beneficial.
- Affidavits – A court often requires an affidavit, and having a notary notarize the document adds another layer of protection. The court does not check the facts in an affidavit but simply takes the affiant’s word at face value. A will is a type of affidavit. An affidavit is used briefly in situations when you want to verify a signature or confirm a fact. Any lawyer will tell you not to include an affidavit with a petition for a law suit, so use an affidavit only where it is actually needed.
- Marital agreements – Notaries are called for in most divorce cases, but some other types of marital agreements might require notarization as well. A notarized separation agreement could be useful as grounds for divorce in some states.
- Powers of attorney – A notarized power of attorney is convenient because you can appoint someone to make decisions when you are unable. If you ever need someone to use a power of attorney on your behalf for transactions, it must be notarized in order to protect everyone involved.
- Deeds and mortgages – A deed may be required to transfer property ownership. A mortgage agreement may be called a deed of trust. These forms of collateral for a loan typically require notarization.
- Other forms – There are numerous other types of legal agreements that may be required to be notarized.
The Weakness of Notarized Documents in Court
Despite the strength that a notarized document could bring to your case, this type of evidence may face challenges if you attempt to use it in court.
A judge may question the relevance of a notarized document if it does not specifically address the legal issues at hand. For example, a notarized agreement for an unpaid car loan will likely be considered irrelevant in a child support case, unless it is being used to show how the opposing party spends money on child support .
In other cases, the document’s relevance may be weakened by new information. For example, a notarized will that was written decades ago may no longer apply if the testator’s will has been updated recently.
A notary’s failure to adhere to proper protocol could also diminish a notarized document’s utility in court. For instance, a judge could throw out the evidence if the notary did not witness the signer write their signature or if they did not verify the signatory’s identity.
How to Strengthen Notarized Documents
For a notarized document to have legal standing in court, it must meet certain criteria. The notary public is responsible for ensuring that, at the time of the signing, the document signer is making a legal and competent request, the document is properly documented, and the notary signs their name on the document correctly.
There are some additional areas where there is flexibility in how something is notarized. For example, there is no requirement in law that a signature must be notarized on the same date that it is signed. A notary public needs to "exercise reasonable care" to be sure that he or she actually witnessed the signing of the document. Reasonable care is defined as actions "yielding substantial justice." The best practice for ensuring a notarized document stands strong in court is to:
- choose a reputable notary public
- get the signature in the presence of the notary public
- make sure the notary public has a clear gain that this document is being properly signed
Where notarized documents fall short is:
- If there is a missing element, the entire signature can be nullified.
- Signers often don’t notice if their signature is malformed — they trust the notary public to sign correctly.
- If a witness is called into court, they can be dismissed because they saw someone initial where it didn’t match.
The biggest keys to a signature standing up in court are having current addresses, no missing initials. Do not hand a signature over with expectation that a notary public is going to make it right.
Best practice for validation is checking the name and address of the signers. Having current addresses allows for the court to subpoena the other party in future cases. A witness often determines if a signature is legal or not. Always require the signer to be in the room and sign the document on that day.
Notarized Documents Myths
One of the most common misconceptions about authenticated documents is that the authentication somehow bolsters or legitimizes the contents of the document. Unfortunately for the layman, most notarized documents are little more than a safe passage for events that have already taken place.
The first misconception is that notarized documents cannot be contradicted by oral testimony. Legally, this is untrue because an authenticated document simply cannot be understood in the same way as physical evidence like fingerprints or blood. Written testimony by a witness may be considered above the written word if it is compelling enough. While it is not always going to be strong, expert testimony may be seen as better than the written word.
Another common idea people have is that documents with signatures are vetted before they are anointed by a notary . In truth, a notary cannot possibly do this. Notaries are not permitted to give legal advice or interpret the law. They are there simply to authenticate signatures for people. The documents themselves could very well be entirely false, and the notary will still happily put their signature on it.
People also mistakenly think that notarized documents cannot be forged. Obviously this is simply untrue because all documents can be forged if one person includes sufficient technological or scientific expertise. A person could, theoretically, use the same stamp, sign it and even then get away with it if the original is not produced.
Overall, authenticating documents is essential to the proper legal process, but laymen face a deficit of knowledge on the process.