Updated 10-16-23. There are times when a signer urgently needs a notarization, but cannot appear in person before the Notary due to unusual circumstances such as a medical or family emergency.
If this happens, some states permit the signer to sign the document in the presence of a witness. The witness — not the signer — then appears before the Notary.
The Notary identifies and administers an oath to the witness. Then, the witness signs the document. Based upon the witness’s oath, the Notary performs the notarization. This is called a “proof of execution by subscribing witness.”
But there are restrictions and specific requirements for this act. Here’s what you need to know.
Restrictions on proofs
The most important thing to remember is that proofs of execution are one of the only times a document signer does not appear before a Notary to have their signature notarized. While you must be careful when performing any notarization, this is even more important when you perform a proof.
Not all states allow Notaries to perform proofs; sometimes Notaries aren't even aware that they are permitted to do so. This is often because the rules for proofs of execution are sometimes included in real estate statutes or some other obscure part of state laws rather than in state Notary statutes.
Because the signer is not present, states often have strict criteria for using proofs of execution by subscribing witnesses. Here are some examples:
- California requires a subscribing witness to be identified by another credible identifying witness who is personally known to the Notary. The credible witness must present an ID card allowed by law to the Notary.
- In Texas, the subscribing witness must either be personally known by the Notary or be identified by a credible witness.
- In North Carolina, a subscribing witness cannot be a grantee or beneficiary of the document that is being notarized.
- In Pennsylvania, the subscribing witness must be an attorney licensed in Pennsylvania.
- In Tennessee, two subscribing witnesses are required.
Georgia and Washington, however, do not authorize proofs of execution by subscribing witnesses.
While there is no mention of proofs in Florida Notary law, the state’s real estate law technically permits proofs. But there is no information in the law, rules or Notary handbook about how to perform a proof.
Always check your own state’s rules first before accepting a request to perform a proof of execution.
Real estate documents and proofs
Due to risk of fraud, California prohibits its Notaries from performing a proof of execution on powers of attorney, on documents requiring a thumbprint in the Notary’s journal or on any instrument affecting real property. Certain real property documents — decrees of foreclosure, non-judicial foreclosures under California Civil Code 2924 or deeds of reconveyance — are exempt.
Conversely, Oregon law permits proofs of execution to be used only for certain real estate transactions, but state officials recommend that Oregon Notaries consult with the Real Estate Division if it comes up.
Proofs in the workplace
Some employers ask Notary employees to perform proofs of execution as an easy alternative to appearing in person as a convenience for themselves or clients. While it can be argued that there is no reason the boss or the client couldn’t go to a Notary themselves, state laws governing proofs allow this practice.
If you are asked to perform a proof of execution by your boss, be sure to confirm that your state permits the act. If you are allowed to perform a proof of execution and the subscribing witness meets all the requirements, you can proceed. Also, you might gently make the case to your boss why it’s a good idea for signers to be present and suggest that failing to require the signer to personally appear is one of the most common causes of Notary-related lawsuits.
A final note
Because the requirements for proofs can be highly technical, you should only perform them if you are familiar with them and understand what is required. If you are not familiar with proofs, it is okay to refuse a request to perform one.
David Thun is the Assistant Managing Editor at the National Notary Association.
Related Articles:
What Would You Do Answers: The case of the absent signer
Additional Resources:
NNA Notary Hotline