A witness is a person who is present to observe the signing of a legal document. Out of necessity, they are neutral third-party observers of the signing. This means they have no relation to the signing parties and no connection to the transaction. A witness will provide a signature as well to verify the authenticity of the signing.
A witness’s primary role is to confirm the identities of the signing parties and the validity of the signing. This is necessary in case there is ever a dispute with the document. As a neutral third party, witnesses provide a necessary level of credibility to ensure that the document is recognized and legally enforceable.
There are a few different types of witnesses you should be aware of, which we will take a more in-depth look at below. Before we get to that, let’s first get a better understanding of what types of documents typically require notary and witness services.
Not every document signing requires a witness, and in fact, many do not. Signatures that do require a witness are usually legal or financial forms, such as:
Last will and testament: Legal documents which detail the intended distribution of assets from an estate.
Divorce decrees: A document issued by a court granting a divorce.
General contracts: Documentation of an agreement or promise which is enforceable by law.
Mortgage agreements: A document that specifies your mortgage loan terms and agreements.
Property deeds: Documents that are used to transfer ownership of real property from seller to buyer.
Documents that require a witness signature have different requirements depending on the jurisdiction they are in. For instance, some signings may require multiple witnesses to be present. There are also different types of witnesses that are necessary depending on the situation. Check these requirements to ensure the validity of your signature.
Different types of documents may have specific witness requirements. These requirements vary by state and jurisdiction, as can the stipulations for who qualifies to be a witness. To give you a better understanding of how and why this works, let’s check out the different types of witnesses you may require.
A credible identifying witness is an individual who personally knows a signer and vouches for their identity. This is usually needed in cases where a signer does not have a satisfactory form of personal identification. A credible identifying witness will typically be someone who knows a signer personally and is willing to confirm their identity under oath.
Many jurisdictions require that the credible identifying witness personally know the notary as well. The requirements for fulfilling this duty can vary greatly depending on where you are located. Some states have laws restricting credible identifying witnesses who are connected to or stand to gain from a transaction.
A document witness is an individual or notary who is asked to serve as a witness to a document signing. This specific type of witness usually refers explicitly to an acting notary who has also been asked to serve as a witness. This means that in addition to their official notarization duties, they serve as a witness as a private individual.
If that sounds a little murky to you, you aren’t alone. Many jurisdictions do not allow for a notary to also serve as a witness because of the potential for a conflict of interest to arise. Even where it is technically legal, it is generally considered bad practice for a notary to fulfill both duties.
It is best to ensure that a witness is an entirely neutral third party, if possible.
A signature witness is unique because it is one of the only types of witnessing that is considered an official notarial act. A signature witness is a notary (or other authorized officer) that personally verifies the signer’s identity while obtaining the signature. The document must be signed in the presence of the notary at the same time as identity verification.
This type of witness is only allowed in certain jurisdictions and situations. It’s important to note that this is different from when a notary is asked to serve as a witness in a non-notarial capacity (see document witness above).
A subscribing witness essentially acts as a proxy on behalf of the signer. Their job is to physically watch the signing of a document and then appear before a notary on the signer’s behalf. The requirement for being a subscribing witness is that the witness is present for the actual signing of the document or for the signer to confirm that the signature is theirs.
A subscribing witness is required when a signer is unable to appear before a notary for whatever reason. This type of witness has the highest potential for fraud. Because of this, many jurisdictions limit how and when this type of witness may be permitted.
When a document signer is unable to sign their name, a signature by mark witness is required. If, for example, an individual is only able to sign with an “X” instead of a name, the signature will need to be verified. A signature by mark witness needs to be present when the signer makes their mark.
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Must have a valid form of ID to be a witness.
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