I hope to draw from the vast experience of the other users with this question.

When accepting a "Trust Certification" in lieu of the Trust Document to open a deposit or loan account, is it adviseable for the Bank's Notary Public to notarize the applicant's signatures on the Trust Certification?

While the California Notary handbook does not appear to exclude Notary Publics from acting as agents or employees, it seems to me that as a "Best Practice" the account applicant should provide the Trust Certification fully executed and notarized. In this way there is no appearance real or imagined that the Bank reviewed the Trust document and assisted the applicant with completing the Trust Certification. Keep in mind that the Bank will ultimately depend on having no knowledge of any error in the document's content and has accepted it at face value. Any participation in the Trust Certification process would seem to weaken that protection.

What does the forum think????

Notaries do not attest to the accuracy of the document (i.e. review contents of the trust on which the certification is being obtained), they only notarize a signature.

Al

John -

Our new accounts reps are often notaries. We allow them to notarize the certification. My guidance is that they have the customer complete the form and do not obtain or review a copy of the trust. I think it would be awkward and unnecessary to send a customer somewhere else to get the form notarized.

Your question seems to imply that the notary requirement on a Certification is optional - it is not. Probate Code Section 18100.5(c) requires that a Certification be notarized when it states: "The certification shall be in the form of an acknowledged declaration signed by all currently acting trustees of the trust."

Just to add to RayLynch's comment: To be "acknowledged" under the California Civil Code means to be notarized.

(California Civil Code 1189)

Section 1189 sets forth the form of an acknowledgement and specifies only a notary public may acknowledge a "non-California" document; "acknowledged" does not mean to be "notarized." Civil Code section 1181 specifies those before whom an instrument may be "acknowledged" as follows:

"The proof or acknowledgment of an instrument may be made before a notary public at any place within this state, or within the county or city and county in this state in which the officer specified below was elected or appointed, before either:

(a) A clerk of a superior court.

(b) A county clerk.

(c) A court commissioner.

(d) A retired judge of a municipal or justice court.

(e) A district attorney.

(f) A clerk of a board of supervisors.

(g) A city clerk.

(h) A county counsel.

(i) A city attorney.

(j) Secretary of the Senate.

(k) Chief Clerk of the Assembly."

While ackowledging an instrument before someone other than a notary public may be inconvenient I find nothing in the annotated Probate Code or any cases applying it which specify that a trust certificate may only be acknowledged by a notary public.

Regarding your initial question Jack, if the bank has an employee who is a notary public the only meaningful reason I can think of as to why a trust certificate could not be acknowledged before him or her is if the employee were a beneficiary of the trust. The same would hold true of any instrument acknowledged before a notary public and there are many probate cases which discuss this factual scenario. Arguably the employee may "benefit" because of the benefit to the bank implicit in adding new customers however I believe such an argument would be an enormous stretch for even the most creative of attorneys.

One other point to your question Jack, the larger question implied is whether the bank is requesting or accepting copies of trust instruments contrary to the explicit provisions of the Probate Code? While some practitioners believe it is prudent to request those "excerpts" the code allows a third party to request I have found few probate practitioners who give much thought to things such as "page breaks" which means, in practical terms, asking for excerpts which you have no need for can easily result in a bank being made aware of dispositive provisions of a trust or, worse, limits on a trustee's powers which could render your trust certificate meaningless. One example is the frequent habit of asking a "trust" to execute a guaranty in support of a loan to a business owned by family members such as an LLC. Presuming the trust is revocable this request would be reasonable under the 2nd District's holding in Arluk HOWEVER, since the LLC is a 3rd party to the trust and the unlikely event the drafter contemplated the trust might be used to support a 3rd party's debt it is probable the trustee does NOT have the power to "agree to answer for the debt" of the LLC. Since such a power is not held by the trustee as a matter of law it must be expressly set forth in the trust instrument and your "excerpts" have now become your enemy.

Although I agree that a trust certificate may be "acknowledged" before any of the officers listed above, for practical purposes, what you want is a notary. It will be a rare instance that a customer will take the certification to one of the officers listed above. What I was trying to differentiate was having witnesses "acknowledge" a certificate as may be done with a will.