Notary Rules Blog

Non-Attorney Notaries

2007-11-25T19:03:00.000-08:00

Most attorneys are also Notaries, however there are many, many Notaries out there who do not hold law degrees - but act like they do! It is very important that a non-attorney Notary Public know their limits to avoid getting themselves into legal hot water, and possibly jail!

Penalties for engaging in the unlicensed practice of law in the State of Florida, can be a fine and jail time - not to mention the loss of your notary appointment.

As far as documents and legal forms are concerned - as a non-lawyer notary, you may not prepare any legal documents. You can sell standard, pre-printed legal forms, but you may not complete them for a customer, nor may you give any advice as to how they should complete the form. Even if you know the customer (or friend) very well, you can't give advice, or correct their mistakes. You are allowed to type information on the form that they have written down themselves.

The Florida Supreme Court approved several types of forms to be used by individuals or attorneys. Basically, they are simple forms related to family law or residential leases. The only things you can talk to your customer about in regard to the forms, is what factual information the form is requiring (which is usually on the form anyway), such as name, dates, county of residence, etc. You cannot explain or give advice about remedies or legalities.

The best thing to do when confronted with an insistant customer, is to explain that you do not have a license to practice law and that for their own protection, they should speak with an attorney who is knowledgable about the specific area of law they are dealing with(and possible recent changes)they are - a good reason to be familiar with various attorneys in your area.

Notary Classes on how to become a Notary Public and Notary Loan Signing Agent

2007-08-20T10:45:00.000-07:00

Every state has their own requirements for becoming a Notary Public. Some, such as California, Connecticut, D.C., Alaska, Hawaii, Louisiana, Maine, Nebraska, New York, Ohio, Oregon, Utah and Wyoming require an exam, while others such as Florida, Missouri and Pennsylvania require completion of a specific course. Some may have no requirements, but that seems to be changing yearly. If you are considering becoming a Notary, you need to check on the current state requirements where you will be performing your Notarial acts. Following is a great way to get your training, if you are interested in becoming a Notary Public/Loan signer in California:

Notary Classes on how to become a Notary Public and Notary Loan Signing Agent

Did you know that in California, state law requires anyone taking a Notary Public Exam to complete a six hour seminar prior to taking the exam? Arrive for your exam with the confidence of having been fully prepared by NotaryClasses.com, where you will learn and practice for the exam through their study guide and practice tests.

Do you want to increase your earning potential by learning how to become a Loan Signer? NotaryClasses.com offers a course to help you become a Certified Loan Signer, where you will learn how to conduct a loan signing. You will become familiar with the types of documents notarized during a loan signing and how the typical procedure is followed, along with how to make the most of a career as a Certified Loan Signer.

Here are just some of the benefits you will receive as a student: A free Notary website, easily set up and automatically created at no extra charge; free listing on their TheNotaryList.com for two years; Free access to the notary home study program; guide book; listing of companies for you to begin marketing; sample tests and a guarantee to pass the notary exam, and more.

Anna Nicole Smith Dies Without a Will. What's a Will? What's a Trust?

2007-02-23T13:48:00.000-08:00

I came across this interesting article today, and thought I'd share it with you all - Food for thought....(Author's Info is at the end)

Subsequent to the death of Anna Nicole Smith, it's been reported that she may not have left a will, giving rise to additional turbulent legal confusion for years to come. Without a will, Anna Nicole potentially may be leaving her baby daughter with nothing. Amongst other celebrities dying without a will, include Abraham Lincoln, Howard Hughes, Martin Luther King, Buddy Holly, Marvin Gaye, Sonny Bono, Tiny Tim, and others.

If Anna Nicole died without a will she also died leaving behind many unsettled legal issues, the paternity issue and final custody of her daughter, the unsettled case against her late husband's estate J. Howard Marshall II (oil tycoon), and finally the country/state of court jurisdiction, Bahamas, Florida, Texas, or California.

WHAT'S A WILL? WHY IS A WILL IMPORTANT?

Per Consumer Reports magazine, more than 2/3 of Americans die without a will. So what's a Will? Why is it important? And, how do you get one?

A will is your last written list of wishes effective after your death for the purpose of distributing your wealth and the conditions of which such distribution can occur. The most important part of the will is the designation of custody of minor children; (this issue alone, - the custody of Anna Nicole's daughter would have greatly simplified at least one important piece of the legal quagmire left behind for lawyers to have a field day and possibly eat/consume a good part of her estate).

Without a will, the courts will have to determine who gets what! And, if you have property in multiple states, each state will determine the results separately through a process knows as probate.

The probate process is when the state courts will inventory the deceased person's assets (the willed assets must be titled in the maker's name and belong solely to the maker, or have an interest); it will gather information about claims made against the estate, investigate all claims for their validity, pay off outstanding debts, make decisions as to who gets what based on state laws where the property is located.

WHAT HAPPENS TO ASSETS WITH CO-OWNERSHIPS AND JOINT TENANTS?

Property that's titled in "co-ownership or as joint tenants with right of survivorship" such as husband and wife, automatically goes to the co-owner's or spouse. Similarly property that's titled as "tenants by the entirety" immediately becomes the property of the other tenant. Property that's owned with someone else as "tenants in common" becomes a probate asset and is distributed according to the terms of the will.

WHO MAY CREATE A WILL?

Any person over the age of 18 may draft his own will with or without an attorney. The creator of the will is required to clearly identify himself/herself as the maker of the will, must revoke all prior wills, must state that he/she is of sound mind, must identify each item of property or personal effects, and must clearly identify each person to receive such property. If there are minor children the creator must clearly identify the person or persons to take custody of the minor children, and the creator must identify who will become the executor of his/her will after the creator's death.

The will must be signed in front of a notary public, or in front of two "disinterested parties over the age of 18" (not family members). It's best that the will be notarized, signed in front of a notary public which the notary will append their notary stamp on the original signature.

The most common mistake is that a will is signed by family members, another common mistake is to disinherit a family member or close friend. It's best to mention the individual by name and to give them a small amount rather than to intentionally leave them out of the will. The excluded member may sue the estate, and therefore cause unpleasant and unwanted delays.

WHAT HAPPENS AFTER THE WILL CREATOR DIES?

After the date of death of the maker of the will, everything in his/her name will have to go to probate. No matter how well drafted, the will becomes the jurisdiction of the local state probate court where it becomes a "public document" whereby the will becomes available to all interested parties and creditors.

A will does not avoid the probate process. The court will determine the validity of the will instrument for such reasons as undue influence, or incapacity of the creator at the time the will was drafted, appoint an executor if one is not named, and the court will determine who is eligible to receive the property according to the state's intestacy laws in order of blood kinship to the creator of the will.

As mentioned before, no matter how well drafted, a will must go to probate where it becomes a public document for every interested party to view and review. The only method of avoiding the probate process is to have your possessions and valuable assets titled to a Trust.

- All Trusts, revocable or irrevocable, grantor or non grantor -avoid Probate. - A will does NOT avoid Probate. - A will does NOT avoid Estate Taxes. - Only an "Irrevocable Trust" avoids Estate Taxes.

ON THE DATE OF DEATH, TWO THINGS HAPPEN:

1. All assets in the decedent's name, belonging solely to the decedent, or where the decedent had an interest, go to probate to determine who gets what. This is the Probate Process. 2. Once all assets are probated, all assets in the name of the decedent is appraised for it's "fair cash value" on the date of death, not when the assets were purchased, to determine if there's an estate tax up to 55%. The estate must pay the tax. The person receiving the asset receives the asset tax-free.

WHAT'S AN ESTATE TAX?

Generally the estate tax is an advalorem (value) tax based on the "fair cash value" of the assets titled in the decedent's name or where the decedent had an interest. Property of whatever kind or character, whether real estate, personal property, or bank accounts, cash or near cash investments, interest either as a joint tenant with right to survivorship or a tenant by the entirety is subject to the estate tax.

There are exclusions, such as unlimited spousal deduction that which you leave to the spouse and some other exemptions reportable on form 706 United States (and Generation-Skipping Transfer) Tax Return. The form is extremely complex and is beyond the scope of this article. Please consult with a qualified professional.

About the Author:

Rocco Beatrice, CPA, MST, MBA, award-winning trust and estate-planning expert.71 Commercial Street #150 Boston, MA 02109 tel: +1.508.429.0011 fax: +1.508.429.3034Click here to read more about asset protection, hiding your assets: http://www.ultratrust.com, http://ultratrust.com/west-palm-beach-accident-attorney.html, http://www.ultratrust.com/medicaid-nursing-home-program.html

E & O Insurance for Notaries

2006-12-11T08:04:00.000-08:00

What is E & O insurance, and how does it help a Notary Public? E & O insurance, or Errors and Omissions insurance, covers a Notary in the event of unintentional mistakes that cause injury to a third party – think of it as “malpractice” insurance for Notaries. Some of you might already know what E & O insurance is, and think that it does not apply to Notaries because they are bonded – a common misconception. A Notary bond protects the public and is something that must be repaid by the Notary, in case the of a claim. E & O insurance protects the Notary, and in the instance of a claim, the Notary is not expected to reimburse the insurance company.

What types of mistakes are covered by Errors and Omissions insurance? Inadvertent errors, such as failure to affix your Notarial seal, or to properly identify the signer(s), could subject you to be held liable for any losses. Intentional errors and poor judgment, of course, are not covered. If a claim is made against you, even if it has no validity, you would have the burden of paying court costs etc. in defending yourself, if you did not have E & O coverage. With an E & O policy, you would have no repayment and no minimum or maximum deductible would be required. Also, the attorney fees and court costs are covered, up to your policy limit.

Here are a few examples of the common types of Notary mistakes:

The Notary Stamp is smeared or smudged.
The Notary Stamp covers text or signatures.
The Notary Acknowledgement is worded incorrectly.
Notary stamp missing (yes, it happens).
The Notary’s commission number missing.

If a Notary Public is performing loan signing services, there is even more room for error, such as :

Incorrect Notice of Right to Cancel dates.
Documents are missing signer’s initials.
Mistakes on the document(s) are corrected using white-out.
Notary did not correctly following closing instructions.
Loan Documents not returned in a timely manner.
Notary acknowledgement not completed, or completed improperly.
Notaries accepting personal checks over $500 (or over the amount allowed by State law).
Checks made out to the wrong company.

Though it is not required by law, Errors and Omissions Insurance protects you against mistakes that can happen with any notarization. It only takes one mistake to potentially lose all of your hard earned money, and possibly even your business! Errors and Omissions insurance rates vary according to the State in which you are a Notary, and the amount of coverage you choose. In some States minimal coverage starts out at less than $10.00 per year with maximum coverage at $200.00 per year. Rates can vary greatly from State to State, however the costs are truly minimal considering the consequences should a claim arise. Considering the cost of E & O coverage, it is just foolish not protect yourself.

Record Retrieval Services?

2006-09-30T17:28:00.000-07:00

I received something interesting in the mail today. A "Document Retrieval" company offering to provide me with a certified copy of the Warranty Deed to my property.....get this....for ONLY $59.50!!! Gee, what a deal! I can pay to have this company provide me with a "certified copy" of my own deed, when I already have the original (something every property owner gets after purchasing their property). Their letter doesn't state that it's a "court certified copy, but they do make mention (at the bottom of the letter) that this is something you can do for free, or for a nominal fee (less than $5 at my local court house). My guess is they just print out a copy off of the internet and stamp it "certified". A word of advice for anyone who receives this type of solicitation.....DON'T FALL FOR IT! In most cases you can see, and print, a copy of your Deed online either through your Property Appraiser's web site, or your Clerk of Circuit Court's web site. There are not many instances where you would need an actual 'certified copy'....if you're selling your property, the Title Company handling the transaction obtains a copy of your deed along with their title search. I really feel sorry for anyone taken in by this shameful tactic.

Preventing Identity Fraud

2006-09-02T12:34:00.000-07:00

A Florida grand jury studying the problem of identity theft, concluded that businesses lose an average of $17,000 per identity theft victim.

A Notary Public is one of lines of defense against identity fraud, the continuing crime after the identity theft. During sensitive transactions, such as the purchase or sale of real estate, a Notary Public who performs their duties properly and with a keen eye, can serve as a deterrent in fraudulent situations.

Here are three basic reminders of things Notaries should know without fail, to prevent identity fraud are:

First and foremost, the signer must personally appear in front of the Notary to sign.

Secondly, the signer must provide proper identification. NO photocopies of licenses, or passports. Only the original. Birth Certificates are not valid identification. A good Notary knows what constitutes valid ID.

Third, watch the individual sign the document and examine the signature for any discrepancies between their signature and the identification provided.

Lastly, keeping a Notarial log as mentioned in a previous post, is a valuable tool and can assist law enforcement if you are ever faced with an identity fraud situation.

Changing Your Name

2006-07-12T13:54:00.000-07:00

If you've recently married, or changed your name, you should remember to notify the Social Security Administration. We covered handling your name change with the Notary Commission in a recent previous post, but often forgotten is your Social Security Card. You need to make the change, even if your name is just hyphenated.

When you make the name change, you will receive a new card showing your new name, however your number will remain the same. It is very easy to do - all you need is a form SS-5, a certified copy of your marriage license, or if the name change was not due to marriage, whatever legal document reflects the name change. Remember, your proof must be either the original document, or a copy certified by the issuing agency. A photocopy or notarized copy will not be accepted. If you use your original document, it is recommended that you take the document and form to your local Social Security office, so that you have your documents returned right away. If you mail them, use certified copies. I mailed my documents, and received my card in about one week.

To print a copy of the Form SS-5, go to www.socialsecurity.gov

Notaries.....Keep a log, but keep it to yourself!

2006-05-23T17:37:00.000-07:00

If you perform many notarizations per day, or week, it's a good idea to keep a log. In some areas, you may be required to do so. Either way, it is a smart thing to do. Create a personal notary log and use it for every notarial action you perform. You should retain personal possession of your own log and avoid sharing any of the information contained in the log,otherwise you, the notary, could inadvertently subject the log to Privacy Act protections. So, in order to avoid the Privacy Act issues and any potential liability, keep the log as a private personal document.

Photo ID

2006-05-12T09:22:00.000-07:00

This was cute....an elderly couple selling a piece of property were told to bring photo ID to their closing at the title company, for Notarial purposes. When the closing agent/notary met with the couple, the elderly lady presented her with her driver's license and the elderly gentleman gave her a picture of himself (sitting at home with his little white dog)! He didn't drive, hadn't in years, so he thought the picture was perfectly fine!

Your boss paid for your Notary & you quit.....now what?

2006-04-05T19:05:00.000-07:00

You're a notary at your job and you quit. Your boss paid for your commission, bond and seal, and he won't give you your seal and commission certificate. Does he have the right to do this? NO! Even if he paid your fees, your employer has no right to keep your seal & certificate. Depending on your State, it may also be a criminal offense to do so. YOU were appointed as a notary public, not your employer. Nor can your employer force you to resign your appointment. Ok, what should you do? First, notify your Governor's Office, or Secretary of State, in writing, that your seal is in the possession of someone else. Give your commission number and date of birth, for identification purposes and give the last date that you had the seal in your possession. Send a written request for return of your notary commission to your former employer (by certified mail). If you don't receive a response, you may want to follow up with the local police. This is a CYA measure, just in case your seal is used fraudulantly. Meanwhile, you may be able to apply for a duplicate certificate and seal from the Department of State, Notary Commissions and Certifications Section and bonding agency.

Notarizing a will...

2006-04-05T19:01:00.000-07:00

Notaries....can you notarize a will that has not been prepared by an attorney?
Yes, you may notarize a will, whether or not it has been prepared by an attorney, provided the required conditions for notarization are met (signer must be present and competent, along with providing I.D., if not personally known).

Naughty Notary!

2006-03-06T08:52:00.000-08:00

There are some things that you just can't do as a Notary. These things may sound obviously simple, but believe it or not, some have been caught doing some of these things. Here's some of the forbidden acts:

Notaries cannot notarize and incomplete or blank document.

A Notary cannot notarize the signature of their spouse, mother, father, daughter or son.

A Notary cannot notarize a signature on a document if the notary himself/herself has a financial interest in the transaction (for example, closing documents for the sale of their home)

A Notary cannot make any change to a document after it has been signed.

A Notary cannot use any other name or initial, than the one provided in their original commission, when signing a document.

A notary may not use a signature stamp unless they have a physical disability that prohibits their ability to make a written signature and unless they have first obtained permission from their Department of State, by submitting proper application.

Real common sense here.....A Notary must not notarize a signature on a document if it appears that the person is mentally incapable of understanding the nature and effect of signing a particular document at the time of notarization.

If any of this is news to you, I would suggest reviewing your state's statutes regarding Notary Law.

Things to remember about your appointment

2006-02-08T13:14:00.000-08:00

Notaries are public officers which are appointed and commissioned by the state government. Notaries are not licensed,they are appointed. The Notary's term is usually four years.
If your legal name changes during your term, you must request an amended notary commission, which usually involves a small fee (contact your bonding company for details). While your application is being processed, you can continue to notarize documents, using your former name, until you receive your new, amended commission and seal.
You are required to keep your home address, business address and telephone numbers current, so remember to notify the Notary Commission of any change promptly. If you move out of state, you must resign your notary commission in writing.

Advertising your services

2006-01-22T15:15:00.000-08:00

If you are trying to build or increase your business, advertising your Notary Services could be one way. Before doing any sort of advertising, you should check your State's Notary Law. In Florida, Subsections 117.05(10) & (11), of the Florida Statutes are your guide if you aren't an attorney and are advertising in a foreign language. Your advertisement must contain the following notice in English and the language used in the ad:"I am not an attorney licensed to practice law in the State of Florida, and I may not give legal advice or accept fees for legal advice." Another interesting rule is that you cannot translate the term "Notary Public" into any other language than English. These rules apply to all print ads of any kind, radio ads and TV ads. Also, you should not use your notary seal in any advertising. Your seal is only to be used on notarized documents.

This would be a good time to know your limits and authorities as a notary. Review your rules and don't advertise for services you are not authorized to perform (for example the preparation of legal documents, give advice or notarize items such as photographs, etc). Know the fees you are legally allowed to charge for your services and do not exceed them (the max in Florida is $10 per notarial act and $20 for solemnizing marriage) and keep records of each transaction in a log, or whatever record keeping is best for your successful business.

Privacy Policy

2006-01-21T10:56:00.000-08:00

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Sample Wedding Ceremony

2006-01-14T19:03:00.000-08:00

A Notary Public is allowed to perform wedding ceremonies in the State of Florida, but not all Notaries will perform weddings, usually because of their own personal religious beliefs. The law giving Notaries the authority to perform marriages was enacted in 1861. In order to solemnize a marriage, the couple must obtain a valid Florida marriage license from a county court judge or Clerk of the Circuit Court and present it to the Notary before the marriage ceremony. The Notary must verify the effective date and expiration date of the license and require proper identification if they are not personally known to the Notary. Vows can be personalized and unique, but the intent to make a legally binding commitment must be made. The Notary is responsible for completing the certificate portion of the Marriage Record and returning it to the office that issued the license, within 10 days after the ceremony.

Following is an example of what a ceremony should contain(at a minimum), when performed by a Notary Public:

Some sort of announcement (like "Dearly Beloved....we are gathered here today..)to announce the joining of the man and woman in (holy) matrimony....

Then the Exchange of Vows:

The Notary will ask the woman, "(her name), do you take this man to be your husband, to live together in (holy) matrimony, to love him, to honor him, to comfort him and to keep him in sickness and in health, forsaking all others, for as long as you both shall live""

She should answer...."I do"

This may be repeated in kind for the man.

Then the Notary would state, "repeat after me"

To the Man...."I (his name), take you (her name) to be my wife, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, till death do us part."

To the Woman..." I (her name), take you (his name) to be my husband, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, till death do us part."

Then they would exchange rings as the Notary would ask the man to place the ring on the woman's finger and to repeat, "I give you this ring as a token and pledge of our constant faith and abiding love" (same for woman)

Then the Notary would ask the couple to join hands and would declare, "By virtue of the authority vested in me under the laws of the State of Florida, I now pronounce you husband and wife"

Then to the man...."you may kiss the bride"

Basics...Proper Notary Acknowledgement

2005-12-29T10:10:00.000-08:00

I've seen all types of Notary acknowledgements, most of them lacking the basics, such as, what type of identification was produced....hence the reason for this entry.For an acknowledgement in an individual capacity it's very simple. Here's an example:

State of Florida
County of Broward
The foregoing instrument was acknowledged before me this 14th day of December, 2005, by __(name of person acknowledging)__, who is Personally Known, or who has Produced a ___(FL Driver's License #, or type of identification produced) as identification.
(Signature of Notary Public - State of Florida)
(Print, Type or Stamp Commissioned Name of Notary Public)

Note: Either Personally known would be circled, or type of ID used completed.

Correction...

2005-12-17T19:41:00.000-08:00

Guess I was a little behind on this one....The rule changed as of July 1, 2000. All first time notary applicants are required to complete a three hour notary education course by an approved provider. In Florida check this site for further information: http://notaries.dos.state.fl.us/index.html

2005-12-09T18:59:00.000-08:00

how to become notary public - Notary Information

how to become notary public - Leading Notary Resources Online

2005-11-28T09:01:00.000-08:00

log book for notaries - Notary Information

log book for notaries - Leading Notary Resources Online

2005-11-27T21:38:00.000-08:00

notary public colorado - Notary Information

notary public colorado - Leading Notary Resources Online

2005-11-27T21:13:00.000-08:00

school for notary public - Notary Information

school for notary public - Leading Notary Resources Online

2005-11-27T20:52:00.000-08:00

notary public seals - Notary Information

notary public seals - Leading Notary Resources Online

1st blog

2005-11-27T20:19:00.000-08:00

How do you become a Notary? Well, it's easy to become a Notary in Florida and many other states. Fill out the forms, and a few weeks later you get your stamp & certificate! No mandatory course to complete. Just a brief guide to read at your leisure. Many people do not understand the responsibility of a notary, nor to they know how to execute a proper acknowledgement. I'll be adding to this on a pretty regular basis with some funny stories for you!