top of page

To Witness or not to Witness, that is the question.




Knowing whether you need a witness on a document has more than one aspect to it and that fact has a lot of Notaries a bit confused. Let's break it down for you here.

1 - You may need a document witness or two (witness to a signature) on a document in a loan signing package. Often on conveyance documents (Quit Claim Deeds, Warranty Deeds, etc.) and on Security instruments (Deed of Trust, Mortgage, etc.) you will see witness signature lines. Those documents are created by the lender and if the lender is based in a state that requires witnesses, this document will likely come pre-formatted with the witness lines, regardless of where the property is located. So just having those witness signature lines on your document doesn't necessarily mean they will be used at your signing. So you are tasked with finding out or deciding whether you are using those witness lines or not. A quick call to your hiring party can answer the question, but as you become more experienced you can use some critical thinking skills to determine the answer.

The first thing you should set out to discover is where the property is located and is it in a 'Witness State'. Currently there are five (5) states that require a witness on a Deed. They are; Connecticut, Florida, Georgia, Louisiana, and South Carolina. Regardless of what state you are commissioned in, you will need witness(es) if you are assigned to assist in a closing for a property in one of those states.

The second discovery - Can you, as the Notary on that document, also be one of the witnesses? That question can only be answered by your Secretary of State or other governing agency...not the title company. If you can't find the answer in your State Notary Manual, then you will have to make a call. The following list is current as of the writing of this article, but always double check your state regulations.

Connecticut; Deeds require two (2) witnesses and if you are a Notary in that state you may also be one (1) of the witnesses.

Florida; Deeds require two (2) witnesses and if you are a Notary in that state you may also be one (1) of the witnesses.

Georgia; Deeds require one (1) witness and if you are a Notary in that state the Notary can't be the witness.

Louisiana; Deeds require two (2) witnesses and if you are a Notary in that state the Notary can't be the witness.

South Carolina; Deeds require two (2) witnesses and if you are a Notary in that state you may also be one (1) of the witnesses.


If you are signing on a property located in a witness state but YOU are NOT in a witness state, you should follow the regulations for your state to know if you can also be the witness;

Arizona; Notary cannot be the witness when notarizing a document for property in a witness state.

California; Notary cannot be the witness when notarizing a document for property in a witness state.

Oregon; Does not have a law that addresses whether or not a Notary can act as the witness and the Notary on a single document.

Washington; Notary cannot be the witness when notarizing a document for property in a witness state.

Kansas; Notary cannot be the witness when notarizing a document for property in a witness state.

Maine; Notary cannot be the witness when notarizing a document for property in a witness state.

This is not a complete list so you will need to check to see if your state regulations address this. The NNA suggests that it is "generally better to say no" because it can create a possible conflict.

2 - The next confusing element comes when we look at a document known as a Power of Attorney (POA). This is not a document where you are deciding whether or not you need the witness lines. This usually falls in the category of General Notary Work (GNW) and is never at the discretion of the Notary. If there are witness lines on the document then there needs to be witness(es) present to witness the signing. Witnesses to these documents should never be the Notary. They are private individuals, over the age of 18-yrs and not a party to the document. Close relatives might be prohibited as well.

3 - And yet there is another process that involves the word "witnessing" and that is a notarial act called, Signature Witnessing. Witnessing a signature is a different act from an Acknowledgement or a Jurat and not every state has this act available to their Notaries. There are thirteen (13) states that have Signature Witnessing as a notarial act. Georgia, Colorado, Idaho, Illinois, Kansas and Pennsylvania are among those. Signature witnessing is used when it is required to prove that a document was signed on a particular day. An acknowledgement does not require that the document be signed in your presence in most states. A Jurat establishes that the document was signed in your presence but is also a sworn oath. So Signature Witnessing is a different act with different requirements. California, Arizona, Florida, Texas are just a few of the stated that are not authorized to perform Signature Witnessing. How do you know if the certificate is Signature Witnessing? It will say 'Signed (or attested) before me' and will not require an Oath.

4 - Then there is a Subscribing Witness. Sometimes called ' Proof of Execution by Subscribing Witness'. This is a person who watches the signing of a document and then takes it to a Notary and acknowledges the principal did in fact sign it. Not many states allow this and can you imagine what opportunities for illegal activity would exist. Pretty much leaving the door wide open for fraud.

5 - And the last one (that I can think of) is the Credible Witness. This is not a signature or a notarial act. This is actually a human ID that is used to identify the signer when they do not possess valid government ID. It has been strongly recommended that a Credible Witness Affidavit be completed and retained by the Notary.

2 views0 comments

Comments


bottom of page