Affidavits: What Are They and What Do They Do
Affidavits are sworn documents that make factual assertions relevant to a legal proceeding or other matter. When someone signs a document and states its truthfulness, there can be a question as to whether they make the assertion under oath. Affidavits allow them to do this. Affidavit in Latin means "he has stated on oath." When someone makes an affidavit , their allegations have a more "official" quality than if they didn’t do so.
The reasons for using an affidavit vary. There may be concerns over how truthful someone is being in a witness statement, which makes an affidavit useful. A person must sign an affidavit in the presence of a lawyer or notary. As you review your will and other legal documents with a lawyer, it’s valuable to know that you are under an affidavit each time you engage with your lawyer.
Documents for Power of Attorney
A Lasting Power of Attorney allows you to give someone else the ability to make decisions regarding your assets and affairs on your behalf. It does not grant the attorney rights to make decisions about your health. The first type of General Power of Attorney allows your attorney to manage your financial affairs and make major decisions but only while you are alive. If you lose mental capacity, a General Power of Attorney does not remain in effect. The document terminates upon the principal’s death.
An Enduring Power of Attorney gives the same powers as explained above except that it remains in force after the death of the person giving the power. An Enduring Power of Attorney is sometimes also referred to as a Durable Power of Attorney or a Financial Power of Attorney. You can revoke a General Power of Attorney at any time as long as you still have mental capacity. In other words, your attorney cannot stop you from revoking the power even if you are disabled. An Enduring Power of Attorney, however, is irrevocable, as the name suggests. Power of Attorney documents must be signed in the presence of a Notary Public to be legally valid.
Insights into Deeds of Trust
Deeds of trust play a vital role as the financial heart of a real estate transaction. Designed to secure a loan, a deed of trust allows for the legal transfer of a piece of real estate to a third party, usually a financial institution such as a bank, until the borrower repays the loan in full. The signing of a deed of trust occurs when a buyer borrows money from a lender to purchase real estate. The deed secures the lender’s interest in the property and serves to protect both parties in the transaction. A deed of trust is often confused with a mortgage, and while the two are similar, the most significant difference is that the deed bundles the borrower’s loan and the property into one single instrument, whereas a mortgage represents a collection of two separate loans tied to a specific property. The function of a deed of trust in a real estate transaction is to protect the lender’s investment in the property. The property serves as collateral for the loan, with specific property descriptions establishing legal title. By adding the notary process to the transaction, lenders can better serve their customers through the added security and peace of mind of a validated loan agreement. An improperly executed deed of trust can allow a borrower to successfully fight a foreclosure. Deeds of trust, like many real estate documents, require notarization for every party involved. The presence of a notary public on a deed of trust ensures a signature validation process was followed to the letter. Mistakes in the sale or creation of a deed of trust can tarnish or invalidate the legality of the entire real estate transaction.
Wills & Living Wills
A will is a legal document that expresses a person’s wishes about how their property is distributed when they die. Wills generally have to be "probated," or made a part of the public record. This process insures that creditors are paid and that the person’s property is distributed in accordance with his or her wishes. A will may include a provision that states what should be done by a court if the testator becomes incompetent.
A living will (also called a "health care directive" or "advance health care directive") is a document that informs a person’s medical providers and loved ones about his or her wishes about end of life issues and about treatment in certain types of medical conditions. The decision to pull the plug from a person being kept alive through extraordinary future action or whose body is just plainly not responding anymore to the medical treatment due to terminal illness, old age or other reasons, can be a hard one to make. Therefore, it is wise to make such wishes known clearly in a written document. A will should also name a guardian for a minor child or an incompetent individual. The will should also contain a "self-proving affidavit," to serve as witnesses to the signing of the will. Darkly put, people sign living wills so others don’t have take the morally difficult choice of pulling the plug when they can’t do so on their own. A standard form for a legally acceptable will is called a "self proving affidavit." In it, the testator and two witnesses swear to the circumstances surrounding the signing of the will before a Notary. Then, the will is attached to the affidavit. Depending on the locality, the Notary may be required to be physically present when the person completes the form. Whether you rely on a pre-printed form or use a lawyer to draft it, you still need a Notary’s skills because your husband, mom, brother, neighbor or cousin Larry may need to provide sworn statements that they saw the form being completed. A Notary standing by will make sure a judge knows your wishes when it really matters.
What to Know When Notarizing a Contract
Not all contracts require notarization, but there are times that an added level of security and precaution can save a lot of headaches down the road. Contracts involving the purchase of goods and/or services often do not necessitate notarization. However, certificates and liens on real estate often do. If you are executing documents that form liens against your real estate, you may find that some state statutes require that these documents be notarized. Or, you may be told by the company requesting execution of the lien or the title company that is processing a real estate transaction that the documents must be notarized.
It is in your best interest to get familiar with whether the contracts or other documents you are being asked to sign must be notarized. Notaries receive training about the types of documents that generally should be notarized (although it is not an exhaustive list) and some notaries may ask you about the transaction or even for the nature of its purpose if you have not asked prior to the interaction. This is not because they want to know your business , but instead to ensure that the document is not fraudulent or illegal. When something doesn’t appear right or the notary does not understand the transaction, they will sometimes ask you for information to protect you against a fraudulent or unauthorized transaction, if they suspect that is what is happening.
However, notaries do not always ask for the purpose of the document. Therefore, it is important that you thoroughly review any contracts or documents before signing them so you know if it needs to be notarized.
Common International Documents and Apostille Requirements
Certain states have specific requirements for notarization of documents intended for use outside the United States. These international documents are subject to the same notarization requirements as all other legal documents. The presence of either an apostille or authentication Certificate is what makes these documents special and subject to additional procedures.
When a foreign country will not accept a document bearing only a notary signature and seal, it may require the document to be certified by federal and/or state authorities. This certification takes the form of an "Apostille" or Authentication Certificate for the document.
The Purpose of an Apostille. The United States is a member country of the Hague Convention of October 5, 1961. Under the provisions of the Hague Convention, or Apostille Treaty, some signatory nations agreed upon a uniform method of authentication of certificates and documents to be used in a contracting party. This provides an alternative to the cumbersome method of diplomatic and consular legalization.
The Apostille is a certificate issued by the Secretary of State, which authenticates the signature of the officer who is signing the document. The Certificate authenticates the signature and seal of the officer and does not certify the content of the document.
Authentication Certificates. Any country which is not a member of the Hague Commission may require that a notarial signature and seal be certified by the Secretary of State and by a U.S. Department of state consular office located in the country where the document is to be used.
If a Certificate is required, the central office of the state in which the notary resides should be contacted prior to notarization of the document. Proper instructions and procedures will be provided by the office.
Notarizing Loan Documents: What You Need to Know
Loan documents are another category of documents in which you will typically find a need for notarization. Although loan documents can be issued and executed without. But generally, they have witnesses and are notarized. Examples of loan documents that usually require notarization include promissory notes, mortgages and deeds of trust to secure debt, security agreements, allonges (assignments) to promissory notes, chattel mortgages, certain lease documents, vehicle titles and bills of lading . Generally, any documents upon which a lender might want to rely upon in a future court proceeding should be notarized.
When these types of documents are notarized as a part of the closing and disbursement of funds, it ensures that they may be filed as an "original" (when the notary certificate is attached directly to the document and may result in an original copy being returned to the lender/creditor). This means in the event of a dispute it is easier for the lender/creditor to "prove up" its claim and enforce its rights to collect or foreclose on the collateral.