Notary changes in 2015 - SB-1050

When a notary acknowledges a document, the verbiage in the notary block is statutorily required to contain certain information.  For example, the California Civil Code specifies what must be in an acknowledgement and what must be in a jurat. In the case of an acknowledgement, previously the notary block was as follows: 

State of California

County of __insert county___

On __insert date___ before me, __insert notary's name___, __insert title, e.g. Notary Public___, personally appeared __insert signatory's name__, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________ (Seal)

In light of the SB-1050's passage, effective January 1, 2015, the notary block must now contain a legible disclaimer at the top of the acknowledgment in a box that reads:

"A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document."

Therefore, for an acknowledgement and a jurat executed now and hereafter, the notary block must contain the two above aspects. Otherwise, the notary is invalid for failing to comply with statutory formalities.

For reference, this new law did not change the amount a notary can charge per signature. The maximum fee remains at $10. Furthermore, it should be noted that this $10 fee is per signature. It is not per visit with the notary. For instance, if a husband and wife are closing a home purchase and 14 signatures are needed, the notary charge up to $140 (14x10). The notary is not required to charge only $20 or $10. I had to convey a similar sentiment to somebody who called my office and needed such done.

Conversely, the notary is not required to charge a fee at all. The notary can simply to do it charitably although the only cases I have heard about a notary doing this is for family, friends or the attorney is a notary who notarizes documents for a client (myself).

Small Estate Affidavit - Transfer of a Deed of Trust

When a person passes away and they have a modest probate estate, for example $150,000 or less in gross assets, beneficiaries may collect the estate using a small estate affidavit. The figure of $150,000 is used because that is the threshold for determining whether or not an estate must be probated or not. For instance, if the decedent passed away with a probate estate worth $170,000, then probate would be required. Conversely, if the decedent passed away with a probate estate worth $120,000, then no probate would be required. Consequently, the small estate affidavit procedure can be used to collect the decedent's estate in such case.

Of note, California until recently had a probate threshold of only $100,000. This was only recently increased to $150,000 effective January 1, 2012.

Many people have inquired over the years if the affidavit has to be filed with the probate court. The short answer is no, the affidavit does not have to be filed with the court. Frankly, absent extreme circumstances, the affidavit will not be filed with the probate court. Although for the transfer of a beneficial interest in a deed of trust, the affidavit needs to be recorded. 

Probate Code §13106.5(a) requires that "if the particular item of property transferred under this chapter is a debt or other obligation secured by a lien on real property and the instrument creating the lien has been recorded in the office of the county recorder of the county where the real property is located, the affidavit or declaration described in Section 13101 shall be recorded in the office of the county recorder of that county and, in addition to the contents required by Section 13101, shall include both of the following: (1) The recording reference of the instrument creating the lien and (2) A notary public’s certificate of acknowledgment identifying each person executing the affidavit or declaration.

The easiest way to obtain the information to complete the affidavit is to acquire a copy of the recorded deed of trust. Since a deed of trust is a recorded document, acquisition of such should not an obstacle. Websites such as datatree.com can be used to obtain these documents for a fee. I used datetree.com, formerly docedge.com, in the past to locate real property records and was please with their service  

A bizarre aspect of this law is that it asks for a notary's acknowledgement when notarizing the affidavit. Yet in California, the correct notarization for an affidavit is a jurat. Hence, when I had to draft an affidavit that transferred a beneficial interest in a deed of trust I was confused about the notarization aspect (I am also a notary). I opted to follow Probate Code §13106.5 because apparently the California legislature decided to alter the notarization requirement for this type of affidavit.

Acknowledgment vs. Jurat

In the context of estate planning, the services of a notary are often required. For example, a client might create a trust and need to transfer ownership of their home into the trust. This requires a trust transfer deed, which may be in the form of a grant or quit-claim deed. Since the deed has to be recorded to give proper notice to third-parties, notarization of the signature is required.

The two most common types of notarial acts are an acknowledgment and jurat. 

Acknowledgment 

An acknowledgment is a formal declaration made in the presence of an authorized officer, such as a notary public by someone who signs a document and confirms that the signature is authentic. Black's Law Dictionary (8th ed. 2004).

Technically, California law does not require that the actual signer appear before the notary. This is in contrast to a jurat which does require personal appearance before the notary. Through a complicated process, witnesses can vouch for the signature's authenticity provided they appear before the notary. Still, you will save the notary plenty of befuddlement if you personally appear before the notary and sign the document, since many notaries do not know the exact procedure for this and would have to look it up.

An acknowledgment is most freqeuntly used with a deed execution.

The following is how an acknowledgment should be worded:

ACKNOWLEDGMENT

State of California
County of _____________________________)

          On _________________________ before me, __________ (insert name and title of the officer) personally appeared _______, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________ 

Jurat 

A jurat is a certification added to an affidavit or deposition stating when and before what authority the affidavit was made. Black's Law Dictionary (8th ed. 2004).

The jurat certifies that the signer personally appeared before the notary when they signed the document. Govt C § 8202. That is, the signer was physically present when they signed it. Also, the notary is required to administer an oath or affirmation to the signer which requires that the signer attest to the document's truthfulness. Govt C § 8202.

An example of where a jurat is used is when there is the death of a trustee. Whereby an "Affidavit of Death of Trustee" is required and such is recorded with the appropriate County Recorder's Office.

The following is how a jurat should be worded:

State of California
County of _______________

          Subscribed and sworn to (or affirmed) before me on this ____ day of _______, 20__, by ________________, proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.