The Proper Steps to Perform a Notarial Act
Article Date: Tuesday, February 15, 2011
Written By: Ozie Stallworth
A notary public is an officer of the State of North Carolina. The signature and the seal of a notary public, properly affixed to a certificate, represents that the notary executed the notarial act in compliance with North Carolina law. The notarial act and steps to accomplish it are designed, in part, to enhance interstate recognition of notarial acts performed in North Carolina. Because of the importance of the notarial act, the notary seal is the personal property of the notary and may never be used by anyone else. In fact, the law stipulates that the notary seal must be kept in a secure location and surrendered to the notary upon termination of employment regardless of who purchased the seal. G.S. § 10B-36
It may come as a surprise to many professionals in the legal community but there are no less than eight statutory steps that must be taken to execute a proper notarization. Depending on the type of notarization, the circumstances surrounding the identification of the principal signer(s) and the implementation of notarial best practices, there can be as many as 10 steps to performing a proper notarization.
Step Number 1 – Personal Appearance of the Principal Signer(s) of the Document
Personal appearance of the principal signer is required for any notarial act. This simply means that at the time the request for notarial services is made, the person requesting the notarization must appear before the notary with the document or record.
G.S. § 10B 20-(c)(1) states that a notary may not perform a notarial act if the principal or subscribing witness is not in the presence of the notary. A notary found guilty of performing a notarial act without requiring personal appearance may be charged with a class 1 misdemeanor or a class I felony if it is found they intended to commit fraud. G.S. § 10B-60(c) and (d).
Step Number 2 – Positive Identification of the Principal Signer(s) of the Document
Each person requesting a notarization must be positively identified through either personal knowledge or satisfactory evidence of identity.
In order to rely on personal knowledge the notary must be certain of a person’s identity. In fact, the statute defines personal knowledge as having “familiarity with an individual resulting from interactions with that individual over a period of time sufficient to eliminate every reasonable doubt that the individual has the identity claimed.” A classic example would be a person you grew up with or someone you have had very close interactions with over a period of time in a number of different settings such as at work, in your neighborhood, and at your local place of worship.
If a notary has the slightest doubt about whether a signer is personally known, he or she must rely on another form of identification, referred to in the Act as “satisfactory evidence”. Satisfactory evidence is defined as a current state or federally issued identification card with a photograph and a physical description or signature. ID cards issued by recognized state tribal agencies that meet these specifications are also acceptable. The most common forms of identification are state driver licenses, passports, and the older military identification cards. The most recently issued military identification cards may generally not be used as “satisfactory evidence of identity” because the signature and physical description is embedded in a computer chip not visible to the naked eye. Therefore this newer military identification makes it nearly impossible for a notary to rely on it as a form of identification.
If a signer is not personally known to the notary and does not possess an acceptable form of identification, there is another option. A mutual friend of the signer and the notary may act as a credible witness to confirm the identity of the signer. The mutual friend must be: personally known to the notary; deemed by the notary to be honest, reliable and impartial; and not a party to or beneficiary of the transaction. G.S. § 10B-3(5). NOTE that there is an additional step that must be followed for the credible witness. See the discussion below regarding Possible Additional Steps.
With the rash of identity theft, mortgage fraud, and various other crimes where imposters wreak havoc on society and on individual lives, it is a critical function for notaries to take their responsibility of positively identifying every document signer very seriously. Notaries are prohibited from notarizing for a signer who has not been positively identified. Failure to comply with this mandate can result in a notary’s commission being suspended or revoked. G.S. § 10B-20 (c)(2).
Step Number 3 – Verify the Signature on the Document.
The act of notarization centers around the signature of the principal signer(s). After all it is the signature followed by the notarial act to which the notary is attesting. The signature must be signed in the presence of the notary or in the case of an acknowledgment, the signer must at the very least indicate that he or she signed the document voluntarily. G.S. §10B-3(1)
When an acknowledgment is being executed, the document may be signed in the presence of the notary. However, if the document has already been signed, the signer would simply indicate or acknowledge to the notary that he or she signed the document and they did so willingly.
If an oath or affirmation is the notarial act being performed, the signer must always sign the document in the presence of the notary. This is because the jurat wording associated with an oath or affirmation states that the document was signed and sworn to before the notary. If the document has already been signed, the signer would need to sign it again before the notary so that the notary can make a proper attestation. Failure to have the signing occur in the presence of the notary is official misconduct for which the notary could be sanctioned.
In no circumstances may a notary perform a notarial act if there is no signature on the record.
Step Number 4 – Take the Acknowledgement or Administer the Oath or Affirmation.
The most common types of notarial acts are acknowledgments and oaths which have two distinct functions.
When an acknowledgment is being executed, it is the principal signer who must acknowledge to the notary that the signature is indeed his or hers. If the document was signed previously, the notary must ask the signer of the record to acknowledge that the signature is his or hers and if it was voluntarily signed. Documents that are signed in the notary’s presence do not require such discourse because the notary’s first-hand account of the signing needs no further confirmation. G.S. § 10B-40
When administering an oath or affirmation, the notary must literally and physically administer an oath. The oath is typically evidenced by the signer raising his or her right hand towards the heavens and placing the left hand on a holy book and swearing before God that the statements in the document are true and correct to the best of their knowledge. G.S. §10B-43
An affirmation is the legal equivalent of an oath and is given in the same manner albeit without any reference to a supreme being or use of the word “swear.” The typical wording is, “Do you affirm that the statements in this document are true?” A response in the affirmative is sufficient for the notary to complete the attestation.
Step Number 6 – Complete the Notarial Certificate Language.
After taking the signer’s acknowledgment or administering an oath or affirmation the notary must complete a notarial certificate attesting to the facts of the notarial act.
In the case of an acknowledgment the notary will complete a certificate that must indicate the location, city and state where the notarial act took place, the name or names of the principal signer(s), the date of the transaction, the method or form of identification that was used to ascertain the signer’s identity and a statement indicating that the signer acknowledged his or her signature to the notary. G.S. § 10B-40
For a jurat certificate that evidences the administration of an oath or affirmation, the notary will need to complete the certificate indicating that the signer signed in his or her presence and took either an oath or an affirmation swearing or affirming that the statements in the document were true. Like the acknowledgement certificate, this attestation will also include the venue which reflects the city and state where the notarial act was performed.
There are statutory notary certificates for North Carolina notaries to use. However other certificates are not precluded as long as they identify the name of the principal, indicate the principal’s personal appearance before the notary, include the date of the acknowledgment, contain the signature and seal of the notary as well as the notary’s commission expiration date.
Step Number 7 – Sign the Notarial Certificate.
Once the notary has completed the attestation of the facts of the notarial act, he or she must sign the certificate with an ink pen in the exact name that is shown on the notary’s commission. G.S. § 10B-35
The notary’s name must be printed or legibly appear on the certificate. G.S. §§ 10B-35 and 10B-20
The notary’s signature must be signed after the notarial act is performed and must appear on the document in close proximity to the notarial certificate language.
There is a prohibition against a notary signing a notary certificate prior to the performance of an notarial act. In fact, it is an act of official misconduct for a notary to sign blank certificates prior to completing a notarial act.
Step Number 8 – Affix the Official Notary Seal.
One of the final steps to performing a proper notarial act is for the notary to affix an impression of the official notary seal. The impression of the official notary seal must be placed near the notary’s signature and on the same page as the notary certificate wording.
The statute also stipulates that the seal can be affixed only after the notarial act has been performed. In no event should a notary ever place his or her official notary seal on a document that has not been completely executed.
Potential Additional Steps
Although keeping a notary journal is not a requirement of law, it is a recognized notarial best practice and is strongly recommended by the Department of Secretary of State. A chronological journal record of every notarial act should be kept to protect the notary, the public, and the integrity of the transaction.
Typical journal entries are: the date and time of the transaction, the name and signature of the principal signer(s), the type of identification used to positively identify the signer(s), the type of document notarized, and the type of notarization that was performed. Note that it is recommended that driver license numbers and Social Security numbers not be included in a journal.
If a credible witness is used to positively identify the principal signer, an additional oath would be administered to the credible witness by the notary. The notary must ask the credible witness to swear that he or she had no interest in the execution of the document and that the signer truly has the identity that he or she has claimed to the notary.
Ozie Stallworth is the Electronic Notarization and Notary Enforcement director for the North Carolina Department of the Secretary of State.
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.