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PART 4 - Section 2
Subscribing
Witnesses
A person who
has signed a document that needs to be notarized need not personally
appear before a notary public, but a representative may appear before
the notary, take an oath that the signature of the principal signer is
genuine, and sign as a witness.
The person who
originally signed the document is called a “principal signer”, and the
representative that was sent to the notary is called a “subscribing
witness”. You as a notary can certify that the signature of a principal
signer who does not appear before you is genuine, based
upon the sworn testimony of a subscribing witness. This is called a
Proof of Execution.
Proofs of
execution are not permitted with mortgages, deeds of trust, security
agreements, quitclaim deeds, grant deeds, powers of attorney, or any
documents in which the notary is required to obtain the thumbprint of a
signer, but are allowed with
trustee’s deeds resulting from foreclosure and deeds of reconveyance.
Civil Code §
1195(b)
and
Government Code § 27287
Before taking a proof of execution for a subscribing
witness, you must make sure that certain requirements are being met:
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The subscribing witness must be able to say, under
oath, that he or she personally knows the principal;
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That he or she saw the principal signer sign the
document or heard the principal signer acknowledge signing the
document; and
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That the principal requested the subscribing witness
to sign his or her name on the document as a witness.
Code
of Civil Procedure § 1935
The subscribing witness must have their identity
established by a third party.
That third party must be known personally by the subscribing witness and
the notary, and prove their identity to the notary with proper
identification (i.e., driver’s license, passport, etc.). That third
party is known as a “credible identifying witness”.
Civil Code § 1196
The subscribing witness must sign the document and the
notary’s journal, and the credible witness must sign the notary’s
journal. Note in your journal the form of identification used by the
credible identifying witness.
Since you
cannot notarize the signature of someone who is not before you, with a
proof of execution by subscribing witness you will be notarizing the
subscribing witness’ signature only.
The standard “all
purpose” acknowledgment form CANNOT be used for proofs of execution by
subscribing witness. The following form is acceptable:
PROOF OF EXECUTION
BY SUBSCRIBING WITNESS
State of California )
) ss.
County of (where the )
Proof of Execution
is being signed)
On (date), before
me, (notary’s name) the
undersigned, a Notary Public for the state, personally appeared
(name of subscribing witness), proved
to me to be the person whose name is subscribed to the within
instrument, as a witness thereto, on the oath of
(name of credible identifying witness)
, a credible witness, who is known to me and provided a satisfactory
identifying document. (name of subscribing
witness) being by me duly sworn, said that he/she
was present and saw/heard (name(s) of
principal signer(s)), the same person(s) described in and
whose name(s) is/are subscribed to the within, or attached, instrument
in his/her/their authorized capacity(ies) as (a) party(ies) thereto,
execute or acknowledge executing the same, and that said affiant
subscribed his/her name to the within instrument as a witness at the
request of (name(s) of principal signer(s)).xfs
(Signature of Notary)
(Seal)
Civil Code § 1195(c)
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