The notary public commission represents a serious duty with a substantial effect on legal documents and their validity. Because of the importance of the notary public’s role, and because a notarization has distinct legal repercussions, it is important that each notarial act be done correctly. Each notarial act has its own requirements for what steps need to be taken.
Generally, there are 3 steps that must be taken for each notarization:
In addition to these steps, the notary must keep in mind the most important rule of performing notarizations: physical presence.
Under Washington state law, in all cases the signing party must “appear physically” before the notary, which means that they must be in the physical presence of the notary at the time of the notarial act. Using video communication software or other means of communicating over distances is not permitted. The physical presence rule applies to any signing party, even if they are personally known to the notary. This is also true for electronic notarizations of documents: the signing party or parties must be in the physical presence of the notary even though the documents will be on a computer or online.
One important function of a notary public is to witness that a signing party is the party that they are claiming to be. Because of that, whenever a notary performs a notarial act, they must first be sure to identify the party involved in that notarial act.
There are 3 ways that a notary can identify a party:
The most common method of verifying a signer’s identity is to look at some form of identifying documents. The Washington State notary statutes point out several options for documents that a notary can use to verify a signer’s identity:
A notary can accept any identifying document that is either current, or expired for less than 3 years. As an example, a notary confirming an individual’s identity on January 1, 2019, could use a driver’s license that is current or that expired anytime from January 2, 2016 through December 31, 2018. Also note that there is nothing requiring these documents to be from any specific jurisdiction; a signer could use an Oregon driver’s license or a Canadian passport, as long as it is not more than 3 years expired.
Personal knowledge is generally considered the simplest method of identifying an individual. If you personally know the signer, you do not need any additional identifying information.
It may be difficult to identify the level of personal knowledge needed to validate an individual’s identity. The notarial statute (RCW 42.45.050) says that a notarial officer “has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.” Generally, you can rely on personal knowledge when you have known the individual a long enough time that you would be willing to swear in court as to who the signer is.
As an alternative means of identifying a signing party, a credible witness may be brought in to verify the signer’s identity. This is a more difficult standard, because it requires having a third party involved in the process.
In order to use this method, a third-party witness must swear an oath and sign that the signing party to the document is who they say they are. The witness must be credible and personally known to you (see above on personal knowledge), and needs to provide identifying documents (see above on identifying documents) to prove their identity. Finally, both the signer and the witness must appear physically in front of you during the notarial act.
Another important function of the notary public is to identify that the person signing is doing so of their own free will. Being able to see and interact with the signer gives you the opportunity to confirm that the signing party intends to sign the documents in question, is competent to sign them, and is doing so voluntarily.
Examples of situations where the signing party may not be competent, knowing, or signing voluntarily include where the signing party:
If you have doubts about the competency, knowledge, and voluntariness of a signer, you may ask questions and talk with the signer to get a better sense of their mental state. If you are not satisfied that the signer is competent, knowing, or signing voluntarily, you may refuse to perform the notarization.
Once you have confirmed the identity and mental state of the signing party, the notarial act can take place. The notarial act consists of 3 parts: recording the act in a notarial journal, performing the notarial duty, and completing the notarial certificate.
As of July 1, 2018, Washington state requires that all notarial acts be recorded in a notarial journal. The journal requirement protects notaries by creating a record of the notarial acts they perform. The journal can be purchased anywhere notary and office supplies are sold, and while their format may vary, there are a few requirements that the journal must include:
There are a few required pieces of information that every entry in the journal must include. Beyond these, you should include whatever information you believe will be helpful in recording the notarial act, such as more details about the method of identification or the signing party’s fingerprint. There is no restriction on using short-hand or abbreviations, however if you choose to do so, you should include a key in case the journal needs to be inspected by a third party. The information required to be in each entry includes:
Alongside recording the notarial act, it is important that you perform the duty that is being asked of you by the signing party and identified by the notarial certificate. The requirements for each of these duties are slightly different and are discussed below in more detail.
An essential element to performing a notarial act is completing the notarial certificate, where your signature and seal will be placed. The certificate contains your verification of the act being witnessed. It may be a separate document, or it may be a section on an existing document.
Each certificate has a few required components that must be present; the minimum language is provided in state law, but the actual language may vary from document to document. As long as you can identify all 4 components in the notarial certificate, the language in the statement of particulars can vary from the language provided by state law. The components required for a notarial certificate include:
It is important that a notary public who is not a licensed attorney should avoid making recommendations about adding certificates or changing substantive language in a notarial certificate because this may constitute legal advice. What exactly does or does not constitute legal advice depends on the facts of the situation, so the Department of Licensing cannot make specific recommendations regarding all situations.
Remember, though, that the unauthorized practice of law is a gross misdemeanor in the state of Washington and is subject to other regulatory bodies such as the Washington State Bar Association, which may have more detailed information or guidelines available.
Given the need for notaries to avoid giving out legal advice, the Department sometimes receives questions about what a notary should do if a client presents them with incomplete documents. If a customer comes with a document that has no notarial certificate, you can provide the customer with all available certificates and have them choose the certificate they wish to add. Notaries are also allowed to correct clerical errors on a notarial certificate, such as spelling errors or an incorrect state printed on the certificate. Additionally, notaries can always seek advice from an attorney or suggest that the signing party do so if there are any specific questions.
The notarial certificate should be entirely on 1 page and should be incorporated as part of the document being notarized whenever possible. If the notarial certificate is on its own page, or is separate from the rest of the document, you should indicate on both the document being notarized and the certificate that the certificate is attached as a separate page.
A list of the notarial certificates provided by statute can be found later in this handbook.
It is important to note the geographical limitations on a notary’s ability to perform notarial acts. Your notarial commission gives you the power to perform notarial acts anywhere in the state of Washington. This means that you and every signing party must be in Washington State at the time of the notarial act.
Additionally, you should remember the physical presence requirement; all parties to a notarial act must be physically present with you for you to perform the notarial act. If you wish to perform notarial acts in another state or country, you will need to be licensed by the appropriate authority for that state or country.