Advertising Notary
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Financial Interest

Marriage

Proof of Execution
by Subscribing
Witness

Refusing to
Notarize

Solution for
Surveyors

Unauthorized
Practice of Law

Unnotarized Oaths

Wills

Miscellaneous
Topics

Could you give me some advice on how to advertise my notary services?

If you are interested in using your notary commission to an extra income, advertising your services may be a way to build or increase your business. Before you leap into 60-second radio commercials or full-page ads in your local newspaper, let's discuss some important aspects of advertising.

Is a marriage ceremony performed by a notary public of the State of Florida "legal and binding"? Is a Florida notary public authorized to perform a marriage ceremony outside the state, or may a notary from another state perform a marriage ceremony in Florida?

Florida is one of only three states (the other two are South Carolina and Maine) who authorize their notaries public to "solemnize the rites of matrimony." §117.045, Florida Statutes. The Florida notary may perform a marriage ceremony providing the couple first obtain a marriage license from an authorized Florida official and may only perform such ceremony within the geographical boundaries of Florida. Thus, a Florida notary could not perform a marriage ceremony in another state. Additionally, a notary from another state, including South Carolina and Maine, could not perform a marriage ceremony in Florida. And, a Florida notary may not marry a couple who has obtained a marriage license from another state.

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No! The Notary Section receives frequent inquiries about "notarizing a person's signature by subscribing witness." Evidently, some notaries believe that it is permissible to notarize a signature when the person is not present if someone who witnessed the signing of the document appears before the notary and swears that the person actually signed the document. Some states, like California, do, in fact, allow such notarizations, but Florida does not. Misunderstanding may also stem from a section in Florida law that provides a method by which instruments concerning real property may be entitled to recording in Florida when the document signer cannot appear before a notary to acknowledge his or her signature. You may hear this procedure referred to as "proof of execution by subscribing witness."

May I ever refuse to provide notary services?

Yes, under certain conditions. Eventually, most notaries are faced with the issue of whether they may refuse to provide notary services when requested. Florida law actually requires notaries to refuse in some situations. In other situations, notaries either should or may refuse to notarize.

When affixing my notary seal on a recording plat, my notary seal impression smears. Can you offer a solution?

Yes. The rubber stamp notary seal has created problems for surveyors and others involved in subdivision platting. The developers or mortgagees sign the plat and their signatures are notarized using an acknowledgment certificate. The problem arises because the ink used in most notary seals does not dry and will smear on the plastic film, known as mylar, used for recording plats. We looked into the matter and found several possible solutions.

As a notary, may I prepare legal documents for my customers?

No. The following article, written by Lori S. Holcomb, Assistant Unlicensed Practice of Law Counsel, The Florida Bar, appeared in The Notary View, 1996, Issue 1.

What is an unnotarized oath?

In a 1993 case, the Florida Supreme Court addressed the issue of "unnotarized oaths." State v. Shearer, 617 So.2d (Fla. App. 5 Dist. 1993). This case may significantly affect the role of notaries in Florida because it recognized an acceptable alternative oath that may be used for verified or sworn written documents. A person using the alternative oath would not need the services of a notary public or other official authorized to administer oaths.

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May I notarize a will that has not been prepared by an attorney? What does it mean to make a will "self-proving"?

Yes, you may notarize a will, whether prepared by an attorney or not, provided the required conditions for a notarization are met.

• The document signer must be present and competent to execute the document.
  
• The signer must be personally known to you or produce appropriate identification.
  
• The document must have a jurat, or the document signer must direct you to provide a jurat.

May I notarize a signature on a living will if there if no prepared notarial certificate on the document?

Yes, if you add the appropriate notarial certificate determined by the principal (the person making the living will).

Florida law provides that a competent adult may make a living will directing the providing, withholding, or withdrawal of life-prolonging procedures in the event such person suffers from a terminal condition. A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither the spouse, nor a blood relative of the principal.

Section 765.303, Florida Statutes, provides a suggested form of a living will. The document requires two witnesses but does not require notarization. However, if your customer insists on acknowledging his or her signature, you may do so.

Remember, if you are not an attorney, do not advise your customer about the contents of the document, nor the correct procedure for executing the document. If your customer has any questions, you should suggest that he or she consult an attorney for assistance.

What should I do if a person produces identification with a name different from the name being signed?

This problem may occur in different situations. In some situations, individuals may have simply neglected to update their identification cards after a name change. You should direct them to the local Division of Motor Vehicles office to make the necessary changes.

In some instances, individuals may need to sign a document with their former name after making the necessary updates to their identification cards. A classic situation arises when a woman changes her name after marriage and has to sign a document, such as a warranty deed, in her former name. You may notarize her signature if she signs both names, but you may want to indicate that fact in your notarial certificate.

For an acknowledgment, you could state, "The foregoing instrument was acknowledged before me this _____ day of ________, 19__, by Mary Smith, who represented to me that she was formerly known as Mary Jones, and who provided a Florida driver license, No. 123 45 678 890 in the name of Mary Smith as identification." You may also want to include information such as the date of birth, expiration date, or physical description.

You may always provide additional information in your certificate, especially if it helps to clarify the circumstances. You may also want to include information about supporting documentation concerning the name change or additional identification cards, if available, in your journal.

May a notary public accept the sworn testimony of a person who witnessed a signature in lieu of the signer being present for the notarization?

No. Although some states may allow a notarization based upon such sworn testimony, Florida does not. Some notaries mistakenly believe that they may call the signer on the telephone to verify the signature and then proceed with the notarization. Florida law prohibits a notary from notarizing any signature if the signer is not present at the time of the notarization.

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When I personally know the signer, am I required to indicate that fact in my notarial certificate?

Yes. When notarizing a signature, a notary public must always certify the type of identification relied upon, either personal knowledge or other form of identification produced. This can be done as part of the main wording in the notarial certificate or at the bottom of the certificate.

We have seen notarized documents where the notary simply noted "PK" or "DL", meaning "personally known" or "driver's license." These abbreviations are not clear, and we recommend that you make more specific notations about identification. Although not required, it is a good practice to indicate the identification card number and the state or country that issued the card. This will help to protect you in case a signer later claims that he or she did not sign the document and did not appear before you for the notarization.

Please review the form notarial certificates for examples of noting the method of identification.

May I attest to a photocopy of a resident alien card issued by the U.S. Department of Justice, Immigration and Naturalization Service?

Yes. This is a frequent request in Florida because of the large number of resident aliens living here. We have consulted the office of Immigration and Naturalization Service in Miami and learned that a person cannot obtain a certified copy of a resident alien card from any INS office. Therefore, if you have the original card, you may attest to the trueness of a photocopy if you make the copy or supervise the making of the copy. You should use a notarial certificate in substantially the same form as that provided in the notary law for attested photocopies.

The INS office emphasized that an attested photocopy of a resident alien card should not be used to prove residency status. Although the notary is not responsible for how the attested photocopy will be used, it may be a good idea to refer the party to an INS office if such certification is needed. If you believe that an attested copy may be used for an improper purpose, you should decline to attest to the copy.

Is there a shortcut for renewing my notary commission?

No. The application process for reappointment is exactly the same as for a first-time appointment. Incomplete applications will not be processed until the applicant submits all the required information. When applying for a renewal commission, treat it as a new application and do not refer our office or the Notary Commissions and Certifications Section to your previous application for information.

Must a notary public actually sign the notarial certificate when notarizing a signature?

Yes. When notarizing a signature, you are required by law to date, sign, and affix your seal to a notarial certificate. See §§ 117.05(3)(a) and (4), Fla. Stat. This is in addition to the requirements that your notary seal contain your exact commissioned name and that you must print, type, or stamp your name below your signature. These provisions of the law ensure the ability to identify the notary, if necessary, and confirm that the notary is the person who completed the notarial certificate and affixed the notary seal.

May I sign my signature as a notary public and affix my notary seal in blue ink, or some other color, so that I can easily identify an original document?

With the improved quality of photocopies and the mandatory use of the rubber stamp notary seal, notaries often express concern over difficulty in differentiating between the original and a photocopy of the same notarization. Section 117.05(3)(a), Florida Statutes, provides that the official notary seal the rubber stamp type seal must be affixed with "photographically reproducible black ink." However, the notary law does not specify a color of ink to be used when signing a notarial certificate. Therefore, if you prefer, you may use a color of ink, other than black, in signing your name to distinguish between an original and a photocopy of your notarial certificate. Bear in mind, though, that copying machines now reproduce in color.

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May I notarize a signature on a document that has been prepared in another state, or on a document that will be sent to another state or country?

Yes, but you should indicate the correct venue (State of Florida, County of ____) where the notarization occurred and complete a proper notarial certificate with all the requirements of the Florida notary law. This may mean that you have to revise the form, particularly it if was prepared under the laws of another state. Additions or corrections should be made by striking through any incorrect information and adding the correct information before completing the notarization. It would also be a good idea to initial any correction that you make. Always include the name of the person whose signature is being notarized and the type of identification relied upon, even if the form provided does not request that information.

When notarizing a signature, what elements must be included in my notarial certificate?

Sample notarial certificates are found in section 117.05(13), Florida Statutes. The essential elements are:

• the venue where the notarization takes place (State of Florida, County of ____);
  
• the type of notarial act performed whether you administered an oath to the document signer or took his or her acknowledgment (look for the key words "sworn to" or "acknowledged");
  
• that the document signer personally appeared before the notary at the time of the notarization (usually indicated by the words "before me");
  
• the date of the notarization;
  
• the name of the person(s) whose signature is being notarized;
  
• the type of identification relied upon in identifying the signer, either based on personal knowledge or an acceptable form of identification;
  
• the notary's signature (exactly as commissioned);
  
• the notary's name printed, typed, or stamped below the signature; and
  
• the notary's official seal (The seal must contain the words "Notary Public-State of Florida" and the notary's name, expiration date, and commission number, and must be affixed in black ink.)

If the prepared notarial certificate does not have each of these elements, you should add the appropriate language to the certificate to make it fully comply with the statutory requirements.

As a bilingual notary public, may I certify the accuracy of a translation of a document from English to Spanish, or vice versa?

Certifying a translation is not an authorized duty of a Florida notary public. However, you may notarize the signature of the translator on an affidavit where the translator certifies and swears to the accuracy of his or her translation. If you are the translator for a particular document, you would be translating the document, not in your capacity as a notary public, but as a person who is fluent in both languages required for the translation. You should make an affidavit and have your signature notarized by another notary. The following sample affidavit should be sufficient to certify the accuracy of a translation.

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Recently, I quit my job. My employer kept my notary seal and commission certificate and refuses to return them to me. I am worried that someone may use my seal and I would be liable. What should I do?

Even if your commission, bond, and seal were paid for by your employer, your employer has no right to keep these items. In fact, it may be a criminal offense to do so. Remember, you were appointed as a notary public for a four-year commission - not your employer. And, your employer cannot make you resign your appointment - only the Governor may request your resignation or suspend you from the office of notary public. You should take several precautions, however, to protect yourself. First, notify the Secretary of State or the Governor's Office in writing that your seal is in the possession of someone else. Be sure to give us your commission number and date of birth for identification, and tell us the last date that your seal was in your possession. Second, you may want to send a written request by certified mail to your employer requesting the return of your notary commission and seal. If your employer does not comply, you should file a report with the law enforcement agency having jurisdiction. This may protect you in the event that your seal is used and a complaint is filed against you. It may also be your defense if you are sued or charged criminally for an improper notarization that you did not perform. Third, you may obtain a duplicate notary commission certificate from the Department of State, Notary Commissions and Certifications Section, and another seal from your bonding agency or an office supply store. Your notary bond cannot be revoked, and you may continue serving as a notary public until the expiration of your term.

May I sign a document as one of the witnesses if I am also acting as the notary public for that transaction?

Generally, a notary public may sign as one of the witnesses and as the notary public on a document. In fact, it is a common practice among Florida notaries, particularly on real estate transactions. Typically, you will see the title clerk sign as one of the two required witnesses and then notarize the document signer's signature. In addition, a Florida court has held that "there is nothing to prevent a notary from also being a witness." See Walker v. City of Jacksonville, 360 So.2d 52 (1978). However, before signing as a witness, the notary should ensure that the document does not require the notarization of the witnesses' signatures. For example, a self-proof affidavit on a will or codicil requires the notarization of the signatures of the testator and both witnesses. If the notary signed as a witness in this instance, he or she would be notarizing his or her own signature, which is a criminal violation of the notary law.

The notary should also certify in the notarial certificate the name of the person whose signature is being notarized. Absent such specific notation, the law presumes that all signatures were notarized. Thus, the notary could unintentionally notarize his or her own signature if the notarial certificate is not specific.

Therefore, providing that the document does not require the notarization of the witnesses' signatures, the notary may be one of the two subscribing witnesses as well as the notary public.

What should I do when I affix my notary seal to a document and do not get a legible imprint?

The information on the rubber stamp notary seal is vital in identifying the notary public. If you get an imperfect imprint of your rubber stamp seal, you should affix the seal again as closely to the first imprint as possible. This may present a problem if the document has limited space. You should never affix your seal over writing, and, if necessary, you may have to resort to the margin area of the document. You may also need to stamp your seal at an angle in order to make it fit the available space. If your seal imprints improperly because it is defective, return it to the supplier for replacement.

I am often asked to certify a photocopy of a tax return for customers who are enrolling their children in college or applying for a mortgage on a new home. May I do so?

No. Section 117.05(12), Florida Statutes, which authorizes notaries to attest to photocopies, requires the following:

• the notary may not certify a copy of a public record, if a copy can be obtained from the official source;
  
• the notary must have the original document from which to make the copy;
  
• the notary must either make the copy or supervise the making of the copy; and
  
• the notary must complete a certificate in substantially the form specified in the law.

In this case, the original tax forms have been filed with the Internal Revenue Service, and no original is available from which you can photocopy the document. However, certified copies are available from IRS. You may want to provide the following information to your customer.

To request a photocopy or a certified copy of a tax form from a previous year, the person must file Form 4506 "Request for Copy of Tax Form" with the IRS. The cost of the copies is $14 and usually takes 6-8 weeks to receive. A form and more information can be obtained from any IRS office.

There are two alternative documents provided by the IRS that may satisfy the needs of your customer. First, a "1722 Letter" is available at no charge and can be ordered over the phone and received within just a few days. This document contains pertinent tax information and is usually accepted by all universities, lending institutions, courts, and government agencies in lieu of certified or "notarized" copies of tax forms. Second, a "Transcript of Account" contains limited tax information but itemizes all payments, interest, and/or penalties for an account. This document is also free and can be received within 30 days.

For additional information, your customer should visit an office of the Internal Revenue Service or call (800) 829-1040.

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May I require the fingerprints of a person for whom I notarize?

No. Florida law does not require, nor authorize, notaries to take fingerprints from persons whose signatures they notarize. Many notary journals or records books allow space for a thumbprint, but this feature is optional. If there is no objection from the signer, you may record a thumbprint in your journal. However, you should not refuse to provide notary services based solely on the person's refusal to provide a fingerprint in your record book.

I will be moving to another state in a few months. May I transfer my Florida notary commission to that state?

No. A Florida notary commission is not transferable to another state. Additionally, because you are a public officer appointed for the State of Florida, you must resign your commission if you change your legal residency and move out of state. You should submit a written letter of resignation to the Governor's Office, specifying an effective date, and return your notary commission certificate (the original, not a copy). You should also destroy your seal or return it to our office. Be sure to give us your new address, as the Governor will send you an acceptance letter acknowledging your resignation.

Occasionally, I see the letters "S.S." on a notarial certificate, usually near the venue. What do these letters mean?

Some notaries mistakenly believe that they are to fill in the signer's social security number after the letters "SS" Actually, the letters are the abbreviation of the Latin word scilicet, meaning "in particular" or "namely." They appear in the venue, so that the location of the notarization literally reads, "In the State of Florida, in particular the County of ____." You may simply ignore these letters and complete the venue as usual.

What do the letters "L.S." mean on a signature line on a document?

The Latin phrase logus sigilli means "place of the seal." You may see the letters at the end of a signature line for the document signer or for the notary. Although rarely done, a person may use a private seal to authenticate his or her signature. More commonly, a corporate seal may be affixed next to the officer's signature when he or she signs on behalf of the corporation. When affixing your notary seal, take care not affix the seal over these letters, or any other writing.

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