By Kelle Clarke on October 07, 2015 in Best Practices
Updated 10-8-19. Identifying signers is the Notary's number one duty. If a Notary can't identify a signer, the notarization can't take place. So what do you do if the signer lacks a driver's license or other forms of satisfactory ID? One option permitted in some states is to have one or more credible witnesses who can vouch for the signer's identity.
Notaries often have questions about using credible identifying witnesses because many states don’t provide detailed rules. Here are tips for dealing with questions and gray areas regarding credible witnesses:
What Is A Credible Identifying Witness?
A credible identifying witness is an individual who knows and can verify the identity of a signer.
The witness appears at the time of the notarization and takes an oath or affirmation before the Notary that the signer is who they claim to be but lacks other forms of ID. Essentially, a credible identifying witness serves as a human ID card for the signer.
Typically, an identifying witness must personally know the signer and the Notary. Texas, for example, permits the use of a single credible witness who is personally known to the Notary. However, some states, such as California and Florida, permit the use of two credible identifying witnesses who aren’t known by the Notary personally but do know the signer and present proof of their own ID (such as a driver’s license).
What If The Witness Is A Family Member?
Being related to the signer doesn’t automatically disqualify a witness, but several states have laws stating that an identifying witness must be “impartial” (Mississippi and New Mexico) or be unaffected by the transaction (Hawaii, Massachusetts, Nebraska and North Carolina). Witnesses in California and Florida must swear as part of their oath that they do not have a financial interest in, nor are parties to, the underlying transaction. Depending upon the nature of the transaction, a close family member may not qualify to be a credible identifying witness.
For example, if a person asks you to notarize a document transferring ownership of a vehicle from the signer to his father, the father would not be “credible” as a witness because he stands to benefit from the transaction. However, if the father isn’t named in the title transferring the vehicle, he could serve as a witness.
How Well Should The Witness Know The Signer?
Technically, this isn’t the Notary’s call. If you personally know a credible identifying witness you may also know that the witness also knows the signer. However, you do not have a duty to investigate the relationship between a signer and witness. Your only duty is to properly administer the oath or affirmation compelling the witness to swear or affirm that he or she knows the signer. (Of course, if the witness lies in swearing to know the signer, the witness will be subject to the penalty of perjury.)
What Kind Of ID Can I Accept From A Witness?
Many states that allow only one credible identifying witness require the witness to be personally known by the Notary. In these states, witnesses are not required to present ID. However, in some states — such as Arizona, Iowa, North Dakota, Oregon and West Virginia — one witness may present an identity document.
In these states as well as the states that allow for two identifying witnesses, a witness’s ID must come from the same statutory list of acceptable IDs that applies to the signer.
In states that don’t specify a particular form of ID, you may accept the same type of ID that you would ask of any signer.
Kelle Clarke is a Contributing Editor with the National Notary Association.
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