Fairfax, VA asked in Estate Planning and Real Estate Law for Virginia

Q: Who is responsible for writing the notarial blocks on real estate and estate planning documents?

I'm a mobile notary in Virginia and I'm certified to notarize real estate packages and living trust packages.

Why are so many notarial blocks in these documents written so that they are not compliant with Virginia notary law?

I also have specific examples of legal documents prepared by the state of Virginia that in no way comply with state notary law. I have been writing to the Secretary of the Commonwealth but haven't made any progress in two years.

It's been a huge problem for me explaining to title companies why I have to attach my own notarial certificates to their real estate documents. Who writes the notarial blocks and why do they ignore Virginia laws? I can provide many examples and would love to talk to someone about this.

1 Lawyer Answer
Nina Whitehurst
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  • Estate Planning Lawyer
  • Crossville, TN

A: Many states have notarial affidavit requirements that are unique to that state. California is one notable example. Florida is another. And apparently Virginia has unique requirements as well.

At the same time, it is common for some entities in the real estate world, especially lenders, to do business in more than one state. Some do business in all 50 states. And they do not always take care to tailor their notarial affidavits to each state's laws. It is common for notaries in certain states to have to attach their own notarial affidavits or certificates for this reason. If you encounter this, just attach your own form. It is unlikely you will ever succeed in obtaining an audience with the person in charge of maintaining their "forms" in order to explain why they are wrong.

Another serial violator is the United States Government. Many agencies have required "forms" that can't be changed and yet the notarial affidavit, meant for use in every state, is utterly unusable and invalid in many states. The usual solution is, again, to attach your own notary affidavit and hope for the best. No matter what, do not risk the violating terms of your commission by caving into anyone else's form.

It is relatively uncommon for an attorney preparing estate planning documents, e.g. living trusts, to not know the notarial affidavit requirements for the state in which the documents are to be signed. If you encounter that, call the attorney and explain the problem. Most likely you are encountering this problem not with attorney-prepared documents but, rather, with forms downloaded by individuals from the internet. In that case, again, yes, you are going to have to attach your own forms.

Anthony M. Avery agrees with this answer

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