Subscribing Witness (Also known as Proofs of Execution)
You will remember from our previous discussion that in order to complete an acknowledgment or jurat, the document signer must always personally appear before the notary and at the time the notary act is completed. Circumstances, however do not always permit the document signer to appear before the notary yet the document must be notarized.
When a person has signed or wishes to sign a document but cannot personally appear before a notary, in California, the signer can request another person to sign the document as a witness to the principal signer’s signature and have their signature notarized as a "subscribing witness".
In emergency cases, when circumstances prohibit a document signer from appearing before a notary, a subscribing witness may be called upon to confirm that the signer (document principal) indeed signed the document and that subscribing witness may take the document to a notary and have the notary complete the "proof of execution" using the steps previously indicated.
The subscribing witness must either witness the document signer signing the document or have the document signer acknowledge that he or she did sign the document.
The subscribing witness identity must be established, or proved, by a third party. That third party must personally know the subscribing witness and be personally known by the notary public. That third party is called a credible witness who will verify the identity of the Subscribing witness. The subscribing witness may not use a driver's license or other form of identification but must be
personally known by the notary public, or by one credible witness. Two credible witnesses may not be used so at least one person must be personally known by the notary or the notary act cannot be completed.
The subscribing witness must swear under oath that:
- The subscribing witness either saw the principal sign the document or heard the signer acknowledge that he or she signed the document.
- The principal requested that the subscribing witness sign the document as a witness
The subscribing witness must sign the document (as a subscribing witness) as well as the notary’s official journal. In addition, if the identity of the subscribing witness was established by a third party, or credible witness, then the credible witness must also sign the notary’s official journal.
Notice that the credible witnesses only signs the journal and not the document whereas the subscribing witness must sign both.
A document called a Subscribing Witness Jurat, also referred to as a “Proof of Execution” must then be filled out and stamped to complete the notarization act. You will notice that it is a special kind of jurat since the signer must swear that he or she either witnessed the signing of the document or that the signer acknowledged his or her signature to the Subscribing Witness.
A proof by a subscribing witness cannot be used in conjunction with any Deed of Trust, Mortgage, Security Agreement, Quitclaim Deed, or Grant Deed document. This makes sense since with these documents the notary is required to obtain a right thumbprint for these types of documents. As in the case of right thumbprints, a Proof by Subscribing witness may indeed be used for a Deed of Reconveyance and a Trustee’s Deed if the property is in foreclosure. These two documents are singled out because while they do contain the word “Deed” in them, they do not require thumbprints and they may be used with a subscribing witness.