Notarization Basics

Notarization Basics - Steps to Proper Notarization from Marcin Trojan

Our new presentation "Notarization Basics" 

The 25 Documents You Need Before You Die

The financial consequences of failing to keep your documents in order can be significant. According to the recent data, state treasurer's currently hold over $34 billion in unclaimed bank accounts and other assets. Most experts recommend creating a comprehensive folder of documents that family members can access in case of an emergency, so they aren't left scrambling to find and organize a hodgepodge of disparate bank accounts, insurance policies and brokerage accounts.  You can store the documents with your attorney, lock them away in a safe-deposit box or keep them at home in a fireproof safe that someone else knows the combination to. That isn't to say you should keep everything. Sometimes people hold onto so many papers that loved ones can't find the important ones easily.

Here is a rundown of the most important documents you'll need to have signed, sealed and delivered. You should start collecting these as soon as possible and update them every few years to reflect changes in assets and preferences. Some - such as copies of tax returns or recent child-support payments - need to be updated more often than others.

1. Last Will - An original will is the most important document to keep on file. A will allows you to dictate who inherits your assets and, if your children are underage, their guardians. Dying without a will means losing control of how your assets are distributed. Instead, state law will determine what happens. Wills are subject to probate—legal proceedings that take inventory, make appraisals of property, settle outstanding debt and distribute remaining assets. Not having an original document means this already-onerous process could be much more of an ordeal, since family members can challenge a copy of a will in court.
2. Durable power-of-attorney form. Without it, no one can make financial decisions on your behalf in the event that you are incapacitated.
3. Proof of Ownership - You should keep documentation of housing and land ownership, cemetery plots, vehicles, stock certificates and savings bonds; any partnership or corporate operating agreements; and a list of brokerage and escrow mortgage accounts. File any documents that list loans and any debts you owe to avoid surprising your family. Make the most recent three years of tax returns available, too.
4. Bank accounts - sharing a list of all accounts and online log-in information with your family so they can notify the bank of your death. Be sure to list any safe-deposit boxes you own, register your spouse or child's name with the bank and ask them to sign the registration document so they can have access without securing a court order.  
5. Health-Care Confidential - durable health-care power-of-attorney form. This allows your designee to make health-care decisions on your behalf if you are incapacitated. The document should be compliant with federal health-information privacy laws, so that doctors, hospitals and insurance companies can speak with your designee. You may also need to fill out an Authorization to Release Protected Healthcare Information form.
6. Life Insurance and Retirement Accounts - Copies of life-insurance policies are among the most important documents for your family to have. Family members need to know the name of the carrier, the policy number and the agent associated with the policy.
7. Marriage and Divorce - Ensure your spouse knows where you have stored your marriage license. For divorced people, it is important to leave behind the divorce judgment and decree or, if the case was settled without going to court, the stipulation agreement.

“One Parent – Minor Child” - traveling abroad with minor children

If a child (under the age of 18) is traveling with only one parent or someone who is not a parent or legal guardian, it’s important to know what paperwork should the adult have to indicate permission or legal authority to have that child in their care. 

Sample letter of consent for travel of minor child

Due to the increasing incidents of child abductions in disputed custody cases and as possible victims of child pornography, Customs and Border Protection (CBP) strongly recommends that unless the child is accompanied by both parents, the adult have a note from the child's other parent (or, in the case of a child traveling with grandparents, uncles or aunts, sisters or brothers, friends, or in groups*, a note signed by both parents) stating "I acknowledge that my wife/husband/etc. is traveling out of the country with my son/daughter/group. He/She/They has/have my permission to do so."

CBP also suggests that this note be notarized.

While CBP may not ask to see this documentation, if they do ask, and you do not have it, you may be detained until the circumstances of the child traveling without both parents can be fully assessed. If there is no second parent with legal claims to the child (deceased, sole custody, etc.) any other relevant paperwork, such as a court decision, birth certificate naming only one parent, death certificate, etc., would be useful.

Adults traveling with children should also be aware that, while the U.S. does not require this documentation, many other countries do; failure to produce notarized permission letters and/or birth certificates could result in travelers being refused entry (Canada has very strict requirements in this regard).

Notarized copy of government issued documents

In NY State notary public cannot perform copy certifications of any document - neither publicly recorded nor private.

If you need a certified copy of any of publicly recorded documents like:

• Birth, marriage, and death certificates; 
• Certificates of citizenship or naturalization; 
• Documents filed in a court proceeding; 
• any form of ID (passport, driver license);
• Documents recorded by the Clerk of the Court; 
• Public records maintained in government offices; 
• Student records (transcripts, etc.) kept in public education offices; 
• Already filed federal or state income tax forms; 

- you  may only obtain it from the custodian of records. 

In case of NYC vital records such as birth certificates, marriage certificates or death certificates - certified copies would have to be obtained from the NYC Health Department (birth and death records) or the NYC Marriage Bureau (marriage records).

When notary will refuse notarization?

There are few reason when notary public, by law, must refuse notarizing the document:

• The notary cannot verify the identity of the signer;
• The notary has a beneficial or financial interest in the document;
• The notary is unable to communicate with the signer (person is not mentally competent to sign);
• The notary has knowledge that the transaction is fraudulent;
• The signer did not personally appear before the notary at the time of the notarization;
• The document contains blank spaces;

Why notarization is important?

Chief among the reasons to have certain documents notarized is that having a document notarized is a deterrent to fraud.  Getting agreements notarized adds a layer of verification. Notarization is the assurance by a duly appointed and impartial Notary Public that a document is authentic, that its signature is genuine, and that its signer acted without duress or intimidation, and intended the terms of the document to be in full force and effect.

Notarization not only makes it more likely that signors are who they say they are but also is mandatory in some states for certain agreements, such as deeds, mortgages, easements, powers of attorney and living wills. 

Having certain papers notarized also is important when disputes are litigated; affidavits, which are sworn statements, will not be considered by a court unless they are notarized.  Notarized documents also are considered self-authenticating, which means the signers do not need to testify in court to verify the authenticity of their signatures. 

Notaries Public Official Status

Notaries have the power to impart an official imprimatur to a document or transaction. There are a plethora of judicial opinions that declare Notaries are “public officers.” (See, e.g., Britton v. Nicolls, 104 U.S. 757, 765 (1881); Werner v. Werner, 526 P.2d 370, 376 (Wash. 1974); and Commercial Union Ins. Co. v. Burt Thomas-Aitken Const. Co., 230 A.2d 498, 499 (N.J. 1967).) But public official status is different for a Notary than for many other public officials. Unlike some public officials, e.g., elected officers, appointed administrators or policemen, a Notary is not a government employee, per se. This distinction can have far-reaching ramifications, especially in the area of personal liability. Usually Notaries are not afforded the sovereign immunity protection routinely available to public officials acting within the scope of their authority. Indeed, in some jurisdictions the enabling statute identifies the Notary as a quasi-public official (see, e.g., Kan. Stat. Ann. § 53-101; and Mo. Rev. Stat. § 486.220.3) and in others the same result has been reached by court decision (see, e.g., Transamerica Ins. Co. v. Valley Nat’l Bank, 462 P.2d 814, 817 (Ariz. Ct. App. 1969); and Ely Walker Dry Goods Co. v. Smith, 160 P. 898, 900 (Okla. 1916)). These classifications, however, are primarily for liability purposes, and do not detract from the central thesis that a Notary is a public official empowered by the states to perform specified duties.

Notary should be identify as a public servant because notarial services are rendered to the public at large under the authority of state statutory rules. Notaries are important functionaries who are obligated to serve individual members of the public. Although notarial acts benefit the public at large by fostering reliance on various types of documents and acts, Notaries nevertheless are distinguishable from other public servants whose primary obligations are to the public as a whole, instead of individual members. 

(based on "The Notary Public Code of Professional Responsibility" National Notary Association)