I am signing a seller this afternoon and the property being sold is in a trust. I always ask for a copy of the trust to view before I sign trustees so that I can affirm that I have at least seen a document acknowledging the signers as trustees. I just called and asked title for a copy or at least the first page of the trust so that I could do so and they relayed that they have never had a notary ask for verification ( the trust ) before. I live in the state of Utah and have always done this so that when the doc says that that the signer proved to me that “name” personally appeared before me and proved they had the capacity to sign as trustee, I have fulfilled that statement. the title company told me that they verified the trust and I explained that I am sure they did but I need to verify the signers capacity to sign as trustee because I am notarizing those signatures. Please advise ya’all. I am a bit surprised and wondering if not verifying the capacity is acceptable. Thank you so much for your expedient answers.
If I was presented with an acknowledgement that said what the quote from Yellowburd1 says, I would require the acknowledgement be replaced with a Vermont short form acknowledgement. In my state the law provides
“Acknowledgment” means a declaration by an individual before a notary public that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record.
In other words, it is the person appearing before me who declared to me they were authorized to sign, I don’t declare to the world they were authorized to sign.
that is fantastic info. thank you so very much. However, If the document says that they proved to me that they had the capacity to sign, I believe I would need the proof. thank you both for taking the time to comment! :
Not verifying a signer’s capacity as trustee is generally acceptable unless your state law explicitly requires it. I always assume my role is to confirm the identity of the signer and witness their signature, not to ensure the validity of the document or the signer’s legal authority. Notaries are not expected to investigate or independently verify the signer’s capacity. When I’m in doubt, I check with my SOS (Oregon) and/or the NNA hotline.
Going to disagree with @Yellowburd1 here - I do not believe that is a requirement under Utah law - and if it is (and I’d like to see statutory references to that) what you’re stating is it would require you to not only verify that the Trust names the signer as Trustee, but that the Trust grants the Trustee the authority to sign loan documents or other documents on behalf of the Trust, which would/should require you to review the entire trust and interpret the Trustee’s authority which, IMO is UPL.
I believe you may be reading too much into what the document states, as you yourself have stated, the Lender/Title has already verified Trustee’s position and authority.
thank you so much for your comment I may very well be reading too much into it. My thoughts up to this point however, are that whatever the verbage says in the capacity as notary , I do, before I sign. I always swear in every signer, if the verbage on the docs says that signer has proven to me they are the signer and have duly sworn ( etc) . I really want to be truthful in what I sign and how I practice. thanks again for all of your comments. this is a great forum for notaries everywhere!
I respect that - just so you know I reviewed Utah’s notarial’s certs before posting, albeit it was only the POA/AIF cert that was cited in representative capacity. Apparently, Utah does not designate Trustee verbiage, but a cert in a representative capacity is what I assumed was required. You said “if it says in the document” not “in the notarial cert”…your cert only states that the signer has proven to be the person who signed the doc and sworn they hold that capacity.
I, honestly, would contact the SOS and get true clarification on that issues.
Best of Luck and thank you for taking my posts in the good faith as they were intended
I just rechecked and I may have been reading the verbiage incorrectly. Here it is letter for letter.
On this 21st day of January 2025, personally appeared before me, the undersigned Notary Public, Name and Name Trustees of the Name Trust, and Name and Name of the Name, trustees of the Name revocable trust, personally known to me ( or 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 before 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 see it now, I am notarizing that the signers acknowledged to me that they have the capacity to sign as the trustee. the instrument rereferred to both times is the same document. Yes I have been a bit muddleheaded… Thank you all again! Wendy
Agreed 100%. I am a signing agent in Oregon, and if the notarial section does not have something similar to a simple “acknowledged to me…”, I will attach a loose acknowledgement from the Oregon SOS stating as such. I have done a ton of of trust signings, and I don’t think I have ever seen a notarial section that asked me to acknowledge that they have proved that they had the capacity to sign as trustee. Of course, I am not a lawyer and can’t give advice. This is just based on my extensive experience.
As a VT notary, the box that is required in CA seems like legal advice. CA notaries put it in their certificates because the law in their state tells them to. Since VT law doesn’t say anything about adding a box, I feel that if I put it in my certificate, I’d be giving legal advice. Since I’m not a lawyer, I can’t do that.
Sometimes we think we know better than the docs preparer and that something that should be notarized that doesn’t have a notarization. There’s a lender I’ve done packages for that doesn’t require the statement of occupancy or correction agreement to be notarized first time I saw that I asked about it and was told no don’t add anything. Then after doing a few the instructions from that lender included “do not add any notarizations to these documents” indicating to me - instead of asking notaries had been adding acknowledgements not required.
Notaries need to ask the service who hired them or the title company directly on things of this nature. That’s the only place to get the appropriate guidance.
"In California, we cannot include any capacity on notary certificates. We only use the signer’s name, if a capacity is preprinted, I cross it out and initial it.
You are 100 % correct to ask for proof. I have in the past asked the signer to present the paperwork to prove to me that they can sign as a POA. When they did not have it on them I stopped and called the Title company because they are to verify this first. BUT NEVER take anyone’s word. Ask Title to send it to you or to the signer through encrypted email to examine it at the signing table before continuing the closing. We as notaries need to protect ourselves from fraud. Never feel bad asking for Trust or POA proof.
Yes, Im in California. I only use California certificates from the NNA, with the Disclaimer. Any other certificate I draw a line through and write, “Please See Attaches.” These are the ONLY certificates allowed with our Seal.
I’m curious what the notaries who are demanding proof of capacities think the title company does? It’s not your place to ask to see someone’s Trust. No one should be reviewing a Trust except the title company. It’s privileged information.
@rangeloro17 Thank you. I would have stated that as well, but I get flagged for being a big ole meanie if I point out notaries should stay in their own lanes.
Florida does not require us to see proof as we are identifying the signer, not the principal. We have to take them at their word. Keeping in mind that, in loan signings, lender has already reviewed and approved the trust documents or POA. In GNW, we take signer at their word and pray there is no kickback.
As a California notary, I have never asked to see a person’s trust but half of my signers have it on hand either to show me, or to verify something. The most common thing they look up is whether one or both must sign. The other question is whether the SSN the trust is filed under is under both or one spouse. Typically not in the documents and where asked for on the IRS documents, the default is usually the husband although the trust may be under both SSNs.
We do not need to verify the veracity of the statements, only that the person was correctly identified and appeared before us. Jurats are sworn or affirmed statements and it is mandatory to make sure that is addressed.
As mentioned by others, we cannot include capacity in our certificates. It can either be crossed out an initialed, or it is mentioned that there is an attached (compliant) certificate. If you provide both copies it can be a problem in terms of billing the customer.
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I may very well be reading too much into it. My thoughts up to this point however, are that whatever the verbage says in the capacity as notary , I do, before I sign. I always swear in every signer, if the verbage on the docs says that signer has proven to me they are the signer and have duly sworn ( etc) . I really want to be truthful in what I sign and how I practice. thanks again for all of your comments. this is a great forum for notaries everywhere!