Different types of witnesses that Notaries may encounter

Article borrowed from National Notary Association.

The term “witness” has different meanings when it comes to notarization. Sometimes it means a customer wants the Notary or another person to serve as a witness when the document is signed. It may mean the signer needs a witness to verify their identity. And sometimes it means a signer wants the Notary to perform a request that is completely outside the Notary’s official duties!

To help clear up confusion, here’s a list of different kinds of witnesses and witnessing that Notaries are commonly asked about, along with an explanation of each one.

What is a credible identifying witness?

A credible identifying witness is a person who vouches for a signer’s identity. Essentially, a credible identifying witness serves as a human form of identification.

Who can serve as a credible identifying witness?

A credible identifying witness must personally know the signer. In some states, the witness must also know the Notary personally, or the witness must present an ID to the Notary.

If the credible identifying witnesses have any interest or benefit from the document being notarized, then they cannot act as witnesses.

What is a subscribing witness?

Suppose a document signer cannot personally appear before a Notary to acknowledge their signature on a document. In that case, some states allow a “subscribing witness” to watch the signer sign the document or take the signer’s acknowledgment and appear in the principal signer’s place for the notarization. This is known as “proof of execution by subscribing witness.”

Who can serve as a subscribing witness?

To serve as a subscribing witness, a person must either have been physically present when the document was originally signed or present for the signer to acknowledge their signature to the witness.

Due to the high potential risk of fraud associated with using a subscribing witness, some states prohibit their use for certain documents. In Texas, subscribing witnesses are common and legally required for most wills, but they also serve a specific function in some notary and probate proceedings. Unlike casual witnesses, subscribing witnesses are legally bound to later testify that they saw the document being properly executed.

All Texas wills must be validly executed. Texas law recognizes two categories of wills: formal typewritten wills and informal handwritten wills. Most Texas wills are formal typewritten wills. These wills have several strict execution requirements. The testator must sign the will in the conscious presence of two witnesses (called subscribing witnesses or attesting witnesses), who must also sign the will themselves. In other words, the two witnesses must be in the same room as the testator when the testator signs the will. Further, the subscribing witnesses cannot inherit anything from the will.

Texas wills are often notarized. This is highly recommended, because it allows the testator to make a self-proving will if the will contains the appropriate written clause. Importantly, a self-proving clause doesn’t mean that the will is automatically valid. Rather, it helps move the will through the probate court by easing several procedures that the court would otherwise require.

What is signature witnessing?

A signature witnessing is a type of notarial act authorized in many states, including Texas. To perform a signature witnessing, the Notary must have the signer personally appear and provide satisfactory proof of identity. The signer must then sign the document in the Notary’s presence, and the Notary then completes the appropriate notarial wording.

It is essential to understand that a signature witnessing is not the same as an acknowledgment or jurat, although the acts share some similarities. A signature witnessing is different from an acknowledgment in that it requires the document to be signed in the Notary’s presence. A signature witnessing is also different from a jurat because while both acts require the document to be signed in the Notary’s presence, a signature witnessing does not require the Notary to administer an oath or affirmation to the signer.

Who can perform a signature witnessing?

A Notary or other officer authorized to perform notarial acts can perform a signature witnessing in the states that allow it.

What is a document witness request?

Sometimes, when notarizing a document, a Notary or other individual is also asked to serve as a document witness. Acting as a document witness is not an official notarial act. The Notary is being asked as a private individual to witness someone signing the document in addition to officially notarizing one or more signatures on the document.

Are Notaries allowed to serve as document witnesses while also notarizing?

In state like Texas that don’t provide specific rules, the safest course is for Notaries to turn down requests to notarize and also act as private document witnesses on the same document.

What is a signature by mark?

A signature by mark is when a signer who cannot write their name signs a document using a mark such as “X” instead and has the mark notarized. Several states require one or more witnesses to be present when the signer makes the mark, and it’s a common practice to have one of the witnesses print the signer’s name next to the mark.

Who can serve as a witness to a signature by mark?

Texas requires two disinterested witnesses.

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Please remember that I am not a lawyer and cannot provide legal advice.