April 20, 2012
A notary is an integral part of the estate planning process. The following 5 questions focus on this issue.
1. What does a notary do?
A notary attests the authenticity of a signature. In regular English, the notary confirms that the person signing the document is who they claim to be by requiring proof of identity.
For example, if John Baker sells his home, he needs to execute a deed. Since the deed requires a notarized signature, John will need to submit proof to the notary that he is John Baker when he signs the deed.
2. What does a notary not do?
Essentially, anything other than attesting the authenticity of a signature.
A notary does not need to be a licensed attorney to become a notary. Unfortunately, many people believe that a notary is automatically an attorney or can give legal advice regardless. The reason being is that in some countries a notary must be an attorney. For example, a notary in Mexico must also be an attorney. The result has been that numerous individuals have been swindled by unscrupulous California notaries who provided legal advice. This can often happen in the immigration field because the clients are unfamiliar with California law and unwittingly heed the advice of the notary. This is most certainly criminal as one cannot practice law without a license. Yes it is a crime to practice law without a license. The law is rather clear on this "no person shall practice law in California unless the person is an active member of the State Bar. Bus & P C § 6125. Moreover, it is likely erroneous given the lack of formal legal training by the notary.
However, many attorneys double as notaries to service their clients more efficiently. In case you are wondering, I am not a notary. I have a colleague who is a notary that handles it for me.
3. What does a notary need as proof of identity of the signatory?
There are various ways for a notary to verify a signatory's identity. The most common method for this is proof of a driver's license.
4. Why does a notary need to be involved in the estate planning process?
A notary needs to be involved for execution requirements. Various documents require that the person signing the document have their signature be notarized. For example, since a deed must be recorded to give notice to third-parties, a notarized signature is basically required. CC §§1214;1217;1189;1181. Furthermore, a power of attorney and advance health care directive can be executed via a notary. Prob C §§ 4121; 4673-4675. Alternatively, these two documents can also be attested by 2 witnesses. Prob C §§ 4121; 4673-4675.
Of particular relevance is the fact that a revocable trust does not require a notarized signature. Many people assume that a trust must be notarized. This is simply not true. There is no California law that mandates that a trust be notarized. The reason for the notarization is out of custom and because since there are no witness requirements, a notarized signature is proof to third-parties that the settlor, the legal term for a person who creates a trust, actually signed the document. Otherwise, a nefarious character could draft a fabricated trust in order to steal the identity of another person. Thus, the notarized signature reduces the potential for fraud.
5. How much can a notary charge per signature in California?
A notary may charge up to $10 per signature. Govt C § 8211(a). Before you tell me that I'm wrong because you were charged more than that, keep in mind that a notary may also charge the cost of travel.