a stamp in a man's hand notarizing document

Navigating Through the Complicated Montana Notary Laws

COVID has led to a shift in many aspects of life. Part of that shift is increased awareness of how life can be fragile. That's why there's an increased need to put things in order and write and revise documents related to life's sunset, such as wills and trusts.

Sure, maintaining an updated will or trust is often enough. But you may want to self-prove it to speed up the probate process.

That's where notarization comes in.

Notarization is where a notary public verifies that a document before them has the authentic signature of the signer. Notaries are government agents that witness the signature's authenticity.

Montana doesn't require you to notarize your will or trust for it to be legal. But the notarized will or trust can be acceptable in a court of law without the lengthy process of contacting all the witnesses that signed it.

The Montana Notary Laws provides several notarization guidelines. Read on:

1. Appear Before the Notary Personally

The law requires the signer to the will to appear before the notary in person during the notarization process. According to Montana law, personal appearance is where you present yourself physically or, in unavoidable circumstances, through two-way, real-time audio and video communication (remote notarization).

2. Submit Your Document

A notary doesn't have to read the will or trust to verify or validate its content. However, the notary needs to glance through it to help them:

  • Be sure you understand what you're signing
  • Ascertain the type of notarial act needed
  • Be sure that you're the right person or representative

3. Identification of the Signer

The notary will verify that you're indeed who you claim to be. Under the Montana notary law, they can do so through:

Personal Knowledge

They have known you for a considerable period and wouldn't mistake you for another person- would identify you easily anytime, anywhere. You won't have to produce any proof of identity. In Montana, a notary can notarize your spouse or relative's signature provided that the notary isn't a direct beneficiary or mentioned in the document.

Satisfactory Evidence

Here, credible witnesses or documentary proof will save the day:

  • Documentary proof

If the notary doesn't know you personally, they'll request a signed and pictured government-issued ID, such as:

  • State ID
  • Driver's license
  • Passport
  • Student ID
  • Military ID

Some forms of identification don't pass as primary identifiers. They include non-pictured government-issued ID (Medicare and Social Security cards), credit cards, and bank cards. Therefore, you may have to produce more than one identification document for conclusive identification.

Be sure the ID document isn't tampered with or altered. Also, the description and picture therein should match you, the signer.

  • Credible Witness

A credible witness can be used to identify you for notarial purposes. They must be:

  • Known to you personally.
  • Known to notary personally or identified based on relevant documentary proof.
  • Physically present (not virtually or through audio) together with the signer before the notary during the notarization.
  • An unbiased party with no benefit from or interest in the will.

4. Determination of The Signer's Willingness and Competence

The notary officer must ensure that the signer is willing and competent to sign the will. They will use "reasonable care" as a standard for determining your competence and willingness.

The notary can infer willingness from your request for notarization. However, some situations might require the officer to exercise extra care. For instance, when you are under the influence of a substance or duress. The notary should request other people to vacate the room and then talk with you about the document to be notarized.

The notary may not notarize the document if they feel that the signer is unwilling or incompetent.

5. Completion of Notarial Certificate

The notarial certificate is completed contemporaneously with the notarial act's performance. It includes the following information:

  • The venue: The county and state where the notarization was done.
  • The statement of particulars: A declaration that describes the type of notarial act, date, and signer.
  • Notary's official signature and the Notarial Seal: The notary will endorse the certificate with their wet or electronic signature. Their official name must match their commissioned name.

Notary Acts

According to Montana Notary Laws, a notary public can perform five notarial acts:

1. Taking acknowledgments

While the signer needs to be physically present before the notary, the officer doesn't need to witness the signing act. The notary should review the document, identify the signer, and verify the signer's signature.

2. Witnessing signatures

Here, the notary must be present and watch the signer signing the document. Even if the signer signed the document, they'll do it again near the already existing signature (without crossing out anything).

3. Verification upon oath or affirmation (Jurat)

The officer performing the jurat must witness the signer and administer an oath. If the information in the document is found to be false, the signer might face a penalty of perjury.

4. Administering oaths

While the notary doesn't have full authority to administer oaths as a separate act, a jurat will mostly need an oath.

5. Certifying copies

A Montana Notary Public may need to attest or certify that a copy of a record or document is an accurate and true transcription or reproduction of the copied document. They don't need to ask for the presence of any particular person since they are not verifying a signature. The certification may be made by copies or document custodian.

The law prohibits Montana notaries from making and certifying public documents' copies:

  • Birth certificates
  • Death certificates
  • Marriage licenses
  • Divorce decrees
  • Court orders
  • Adoption records
  • School transcripts
  • FBI fingerprint cards
  • Motor vehicle titles
  • Any recorded document

The notaries may copy "private" documents like:

  • Driver's licenses
  • Student ID cards
  • Employee ID cards
  • Passports
  • Diploma
  • Certificates or awards
  • Professional licenses
  • Invoices or bills
  • Photographs

Wrap Up

Notarization of your will, trust, or other sunset-related documents can save you a lot of headaches down the road. So grab your document and contact a notary public officer.

And if you're looking for a professional law firm that provides wills, trusts, probate, and estate planning services, consider Tanko Law Firm!

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