West Virginia - U.S. Notary Reference
Last updated: February 13, 2024
QUICK FACTS
Notary Jurisdiction
Statewide (WVC 29C-2-102).
Notary Term Length
Five years (WVC 39-4-20[e]). Government Notaries’ commissions expire when employment with the governmental agency terminates (NH).
Notary Bond
Not required.
Notary Seal
Required for notarial acts on tangible records, but permitted for notarial acts on electronic records (WVC 39-4-15[b]).
Notary Journal
Not required but permitted for electronic notarial acts (CSR 153-45-17.1).
ADMINISTRATION AND RULES
Commissioning and Regulating Official
The West Virginia Secretary of State commissions (WVC 39-4-2[7], 39-4-20[a] and 39-4-20[e]), regulates (WVC 39-4-25), and may investigate and take disciplinary action against the commission of West Virginia Notaries (WVC 39-4-21).
Contact Information
Address: Office of Secretary of State
Notary Division
Building 1, Suite 157-K
1900 Kanawha Blvd., East
Charleston, WV 25307-0770Phone: 304-558-8000
Laws: Most Notary statutes are in the West Virginia Code (WVC), Chapter 39, Article 4 (“Revised Uniform Law on Notarial Acts” [RULONA]), Sections 39-4-1 through 39-4-36. The RULONA, which was enacted into law as West Virginia House Bill 4012, effective July 1, 2014, with few variations from the prototype RULONA. The state’s former Notary laws had been largely based on the National Notary Association’s Uniform Notary Act of 1973.
Rules: Rules regulating Notaries, including eNotarization provisions, are found in the West Virginia Code of State Rules (CSR) Title 153, Series 45, 46 and 50, as was authorized by RULONA.
Guidelines: Guidelines for Notaries may be found in the West Virginia Notary Handbook (May 2018 Edition) (NH) available on the Secretary of State’s website.
COMMISSION AND APPOINTMENT
Commission Process
Qualifications: “An applicant for a commission as a notary public must:
“(1) Be at least eighteen years of age;
“(2) Be a citizen or permanent legal resident of the United States;
“(3) Be a resident of or have a place of employment or practice in this state;
“(4) Be able to read and write English;
“(5) For any applicant that has not been commissioned as a notary prior to January 1, 2018, have a high school diploma or its equivalent; and
“(6) Not be disqualified to receive a commission under section twenty-three of this article [which prohibits activities that include the offering of unauthorized legal advice and false advertising]” (WVC 39-4-20[b]).Government Notary Public: “(a) State and local government employees may be commissioned as government notaries public to act for and in behalf of their respective state and local government offices.
”(b) A state or local government employee commissioned under this section shall meet the requirements for qualification and appointment prescribed in this article except that the head of the state or local government office where the applicant is employed, or his or her designee, shall execute a certificate that the application is made for the purposes of the office and in the public interest and submit it to the Secretary of State together with the application for appointment as a notary public.
“(c) The costs of application and all notary supplies for a commissioned state or local government employee shall be paid from funds available to the office in which he or she is employed.
“(d) All fees received for notarial services by a government notary public appointed for and in behalf of a state or local government office shall be remitted by him or her to the state or local government office in which he or she is employed.
“(e) A government notary public must comply with all provisions of this article in the performance of notarial acts.
“(f) A government notary public may acknowledge any document required to be acknowledged by a notary public: Provided, That a government notary public may not operate privately” (WVC 39-4-31).
“May a federal employee apply as a government notary? – Government notaries are employees of state and local governing bodies only. Federal employees may apply as regular notaries and have the federal agency pay the fee” (website, “Notary Public Frequently Asked Questions”).Disqualifying Offenses: The West Virginia Code specifies grounds that may result in denial of a Notary commission. These include but are not limited to (WVC 39-4-21): the applicant’s conviction for any felony or crime involving fraud, dishonesty or deceit; a finding against, or admission of liability by, the applicant in any legal proceeding or disciplinary action based on the applicant’s fraud, dishonesty or deceit; and denial, refusal to renew, revocation, suspension or conditioning of the applicant’s Notary commission in another state.
Course: Not required. “On the application you will be signing an oath that you have read and understand the requirements and will follow the law” (website, “Applying for a Notary Public Commission”). The state’s Notary laws are available on the website. Also downloadable on the website is a Notary handbook, and the Notary is directed to have this guide available whenever performing notarial acts.
Exam: Not required.
Application
Notary Public Applicants: Applicants for an initial or renewal application must complete the application online in the Enterprise Registration & Licensing System. Select the form number to download the application.
The application contains an oath of office that must be signed and sworn to before an oath-administering official, such as another Notary or a clerk of court.
The commission application fee is $52, payable to the “West Virginia Secretary of State” (CSR 153-50-2).
State and Local Government Employees: A letter from the pertinent government office head must accompany the application and the costs of application, as well as all Notary supplies, are to be borne by the particular state or local office (WVC 39-4-31); federal employees may apply as regular Notaries.
Background Screening: Not required.
Processing Time: It takes about 2-3 weeks for a commission to be issued after the completed application and payment are received (website, “Notary Public Frequently Asked Questions”).
Commission Letter: The successful applicant will receive a “commission letter” from the Notary Division providing the exact information needed to order a Notary seal stamp from a commercial vendor (website, “Applying for a Notary Public Commission”).
Commission Certificate: The Secretary of State will issue a Notary Public commission certificate to the applicant. Applicants must wait to receive their commission certificate before they can begin to notarize (website, “Applying for a Notary Public Commission”).
Non-Residents: An out-of-state resident who is employed or has a practice in West Virginia may apply to become a Notary in the state (WVC 39-4-20[b][3]).
Reappointment: For a renewal, the application process is the same (CSR 153-46-5.2).
60 Days in Advance: “A commissioned notary public may apply for renewal no more than 60 days prior to the expiration of his or her active commission” (CSR 153-46-5.1).
“If you are applying for a recommission and your current commission end date is on or after June 3, 2018, you must use the new notary application with the revision date “Rev. 6/2018” in the upper left box of the application” (website, “Applying for a Notary Public Commission”).Secretary of State Notification: “Does the Secretary of State notify notaries when the commission is expiring? – Yes. The application form will be sent to the address on record with the Secretary of State. However, if you don't receive the form, it is your responsibility to get the form and submit the completed application if you want to renew your commission” (website, “Notary Public Frequently Asked Questions”).
Records Retention: Upon expiration of the term of a Notary, the Secretary of State may destroy original records of appointment for that Notary, provided that the Secretary maintains an electronic copy of the appointment for a minimum of ten years thereafter (WVC 39-4-36[a]). The Secretary of State may destroy any original journals of notarial acts in his or her possession, provided that an electronic copy is maintained in accordance with the retention rules of the Department of Administration (WVC 39-4-36[b]).
No Immunity or Benefit: “A commission to act as a notary public authorizes the notary public to perform notarial acts. The commission does not provide the notary public any immunity or benefit conferred by law of this state on public officials or employees” (WVC 39-4-20[e]).
Notification and Registration to Perform In-Person Electronic and Remote Notarial Acts
In-Person Electronic Notarial Acts
Requirement: “Before a notary public performs the notary public’s initial notarial act with respect to an electronic record, a notary public shall notify the Secretary of State that the notary public will be performing notarial acts with respect to electronic records and identify the technology the notary public intends to use. If the Secretary of State has established standards for approval of technology pursuant to section twenty-five of this article, the technology must conform to the standards. If the technology conforms to the standards, the Secretary of State shall approve the use of the technology” (WVC 39-4-19[b]).
Application: “Once you have selected a technology, fill out an ‘e-Notarization Authorization’ application (Form N-2) and submit it to the Secretary of State’s Office. There is no fee to register as an e-Notary. You have to be a Notary Public in order to be an e-Notary” (website, “Electronic Notarization [e-Notarization]”).
To register the capability to perform electronic notarial acts, a notary public must sign and submit to the Secretary of State a form prescribed by the Secretary of State which includes the following information:
(a) A description of each separate means that will be used to produce electronic signatures and electronic notary seals, where applicable;
(b) The names of any licensing authorities or companies issuing the means for producing the electronic signatures and seals, where applicable, the source of each license, and the starting and expiration dates of each pertinent certificate, software, or process;
(c) An explanation of any revocation, annulment, or other premature termination of any certificate, software, or process ever issued or registered to the applicant to produce an electronic signature or seal; and
(d) A declaration that the notary public will use the means issued or authorized for issuance by the Secretary of State for producing an electronic notary seal, where applicable (CSR 153-45-5).“Under section five of this rule, a notary public may register at the same, or at different times, one or more respective means for producing electronic signatures and electronic notary seals, or single elements combine the required features of both…” (CSR 153-45-6).
“A notary public shall register the capability to perform electronic notarial acts … with the Secretary of State before notarizing” (CSR 153-45-3.1).
“Upon recommissioning a notary public shall again register with the Secretary of State before notarizing or witnessing electronically” (CSR 153-45-3.2).
“A person may apply or reapply for a notary commission and register or reregister to perform electronic notarial acts at the same time” (CSR 153-45-3.3).Term: “The term of registration of an electronic notary public begins on the registration starting date set by the Secretary of State and continues as long as the notary’s commission remains in effect or until registration is terminated under…this rule” (CSR 153-45-4.1).
Remote Notarial Acts
Requirement: “Before a notary public performs the notary public’s initial notarial act under this section, the notary public shall notify the Secretary of State that the notary public will be performing notarial acts with respect to remotely located individuals and identify the technologies the notary public intends to use. If the Secretary of State has established standards under subsection (h) of this section for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards” (WVC 39-4-37[g]).
Same Process: A Remote Online Notary must follow all the applicable rules as an Electronic Notary in registering with the Secretary of State. See “Notification and Registration” under “Electronic Notarial Acts,” above.
Technology Systems: “If the Secretary of State has established standards under subsection (h) of this section for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards” (WVC 39-4-37[g]).
Online Search
Information on Notaries that has been filed with the West Virginia Secretary of State may be accessed online by entering the Notary’s first and last names. Information provided includes the Notary’s name, address, city, zip code, county and commission starting and expiration dates; also indicated is whether the Notary is prepared to perform notarial acts on electronic records (WVC 39-4-22[a]).
Jurisdiction
“A notarial act may be performed in this state by… [a] notary public of this state” (WVC 39-4-10[a][1]).
Term Length
“On compliance with [WVC 39-4-20], the Secretary of State shall issue a commission as a notary public to an applicant for a term of five years” (WVC 39-4-20[e]).
Bond
Not required. Effective June 3, 2018, Chapter 220, Acts, Regular Session, 2018 (HB 4207) eliminated the $1,000 “assurance” requirement. Formerly, applicants for a commission were required to submit a $1,000 Notary surety bond or a $1,000 insurance policy for professional liability, errors and omissions, commercial general liability, or the like (former WVC 39-4-20[d]).
Changes of Status
Written Notification: No later than 30 days after any change of name or address by a Notary Public, the Notary must inform the Secretary of State in writing (WVC 39-4-22[b]).
Address Change: Notaries whose address has changed must complete the “Notary Public Name and/or Address Change” in the Enterprise Registration & Licensing System (website, “Making Changes”). The address change pertains to the address entered in the Notary’s commission application form, whether it be a business or a residence address (NH). A new seal with a new address must be obtained.
Name Change: Notaries whose name has changed must complete the “Notary Public Name and/or Address Change” in the Enterprise Registration & Licensing System (website, “Making Changes”). There is no fee to file a name change. A new seal with the new name must be obtained.
“While you are waiting for the change to be processed, sign notarizations using your new name, and write under your signature "Commissioned as" and your old name. Continue to use your old stamp until the new one is approved, then destroy the old stamp” (website, “Making Changes”).Email Address Change: Within five business days after the change of an Notary’s email address, the Notary must electronically transmit to the Secretary of State a notice of the change (CSR 153-45-21).
Registration Form Change: Within 10 days afterward, any change or addition to the registration form completed by an Electronic, Remote Online, or Remote Ink Notary must be reported to the Secretary of State (CSR 153-45-22).
eSignature and eSeal Change: A Notary must immediately notify the Secretary of State upon becoming aware that “the status, functionality, or validity of the means for producing a registered electronic signature, notary seal, remote online notarial act, remote ink notarial act, or single element combining the signature and seal, has changed, expired, terminated, or become compromised” (CSR 153-45-23.1). In addition, “… the Secretary of State shall immediately suspend the status of a notary who has no other currently registered means for producing electronic signatures or notary seals, performing remote online notarial acts or remote ink notarial acts, and if such means is not registered within 30 days, status shall be terminated” (CSR 153-45-23.2).
Resignation: A Notary who moves out of the state or otherwise acts to resign the commission must resign in writing and destroy the official seal. A Notary may report a resignation in the Enterprise Registration & Licensing System (website, “Making Changes”).
Death of Notary: “In the event of a notary’s death, the notary’s representative, guardian or any other person knowingly in possession of the stamp shall render it unusable” (NH).
NOTARIAL ACTS
Authorized Acts
Notarial Acts: West Virginia Notaries are authorized to perform the following notarial acts, “whether performed with respect to a tangible or electronic record” (WVC 39-4-2[5]):
Take acknowledgments;
Administer oaths and affirmations;
Take verifications on oath or affirmation;
Witness or attest signatures;
Certify or attest copies;
Note protests of negotiable instruments.
In-Person Electronic and Remote Notarial Acts: West Virginia Notaries who have notified the Secretary of State that they will be performing technology-based notarial acts may perform any of the notarial acts listed above electronically or remotely (WVC 39-4-2[5] and CSR 153-45-8).
Acknowledgments
Definition: “‘Acknowledgment’ means a declaration by an individual before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record” (WVC 39-4-2[1]).
“In a representative capacity” means acting as: an authorized officer, agent, partner, trustee or other representative for a person other than an individual; a public officer, personal representative, guardian or other representative in the capacity stated in a record; an agent or attorney in fact for a principal; or an authorized representative of another in any other capacity (WVC 39-4-2[4]).Requirements: “A notarial officer who takes an acknowledgment of a record shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the signature of the individual” (WVC 39-4-5[a]).
“The acknowledgment is the notary’s statement that the person signing the document appeared in person to sign the document” (NH).
Oaths and Affirmations
“A solemn affirmation shall be equivalent to an oath in all cases, unless otherwise expressly provided, and the word ‘oath’ shall be deemed to include an affirmation and the word “swear” or “sworn” to be complied with if the person referred to makes solemn affirmation” (WVC 2-2-7).
“A notary can administer an oath unless the law expressly states that it be done by another officer. The individual to whom you are administering the oath must be present.” (NH).
Verifications on Oath or Affirmation
Definition: “‘Verification on oath or affirmation’ means a declaration on oath or affirmation before a notarial officer, that a statement in a record is true” (WVC 39-4-2[15]).
Requirements: “A notarial officer who takes a verification of a statement on oath or affirmation shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the verification has the identity claimed and that the signature on the statement verified is the signature of the individual” (WVC 39-4-5[b]).
Signature Witnessings
Standards: “A notarial officer who witnesses or attests to a signature shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and signing the record has the identity claimed” (WVC 39-4-5[c]).
Copy Certifications
Requirements: “A notarial officer who certifies or attests a copy of a record or an item that was copied shall determine that the copy is a full, true and accurate transcription or reproduction of the record or item” (WVC 39-4-5[d]). The “West Virginia Notary Handbook” states that a copy certification requires the Notary to ensure: that “a written, signed request states that a certified copy of the document cannot be obtained from the office of any recorder or custodian of public documents in the state”; that making a copy of the document does not violate state or federal law; and that the Notary keeps a copy of the facsimile on file.
Retaining Copy on File: The following provision related to Notary fees also indicates that West Virginia Notaries must keep on file a facsimile of each original record for which they provide a certified copy (emphasis added): “The maximum fee in this state for certification of a facsimile of a document, retaining a facsimile in the notary’s file, and the proper recordation thereof in the journal of notarial acts is $5.00 for each eight and one-half by eleven-inch page retained in the notary’s file” (WVC 39-4-30[b]).
Protests
Definition: “A protest is a certificate of dishonor made by a United States consul or vice-consul, or a notary public or other person authorized to administer oaths by the law of the place where dishonor occurs” (WVC 46-3-505[b]).
Requirements: “A notarial officer who makes or notes a protest of a negotiable instrument shall determine the matters set forth in subsection (b), section five hundred five, article three, chapter forty-six of this code” (WVC 39-4-5[e]).
“[A protest] may be made upon information satisfactory to that person. The protest must identify the instrument and certify either that presentment has been made or, if not made, the reason why it was not made, and that the instrument has been dishonored by nonacceptance or nonpayment. The protest may also certify that notice of dishonor has been given to some or all parties” (WVC 46-3-505[b]).
STANDARDS OF PRACTICE
Personal Appearance
Notarial Acts: “If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer, unless the individual making the statement or executing the signature appears personally by communication technology, as provided in §39-4-37 or §39-4-38 of this code” (WVC 39-4-6[a]).
“Do not notarize papers if the individual does not appear before you” (NH).Remote Notarial Acts: “A remotely located individual may comply with the provisions of this section by using communication technology to appear before a notary public” (WVC 39-437[b]).
COVID-19 Curative Provision: “Acknowledgements and notarizations performed by means of remote communication technology, pursuant to section 6 of the Governor’s Executive Order 11-20 effective March 25, 2020, by which the Governor suspended the provisions of §39-4-6 of the code applicable to court reporters and other notaries, are deemed to be valid and cured of any defect from failure to comply with §39-4-6 of this code if the acknowledgements and notarizations were performed in accordance with the emergency rules promulgated by the West Virginia Secretary of State, which are found at the Code of State Rules §153-45 et. seq.” (WVC 39-4-6a).
Identification
Notarial Acts
Requirement: Signers of documents requiring an acknowledgment, verification upon oath or affirmation or signature witnessing must be identified by Notaries and other notarial officers through either personal knowledge of identity or satisfactory evidence of identity, as defined below.
Personal Knowledge: “A notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed” (WVC 39-4-7[a]).
Satisfactory Evidence: “A notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual:
“(1) By means of:
“(A) A passport, driver’s license or government-issued nondriver identification card, which is current or expired not more than three years before performance of the notarial act; or
“(B) Another form of government identification issued to an individual, which is current or expired not more than three years before performance of the notarial act, contains the signature or a photograph of the individual and is satisfactory to the officer; or
“(2) By a verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify on the basis of a passport, driver’s license or government-issued nondriver identification card, which is current or expired not more than three years before performance of the notarial act” (WVC 39-4-7[b]).Additional Information or Credentials: “A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual” (WVC 39-4-7[c]).
Remote Notarial Acts: “A notary public located in this state may perform a notarial act using communication technology for a remotely located individual if:
“(1) The notary public:
“(A) Has personal knowledge of the identity of the individual;
“(B) Has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public under §39-4-1 et seq. of this code; or
“(C) Has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing” (WVC 39-4-37[c][1]).
“'Identity proofing' means a process or service by which a third person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources” (WVC 39-4-37[a][3]).
Refusal of Services
Specific Grounds: “A notarial officer may refuse to perform a notarial act if the officer is not satisfied that:
“(1) The individual executing the record is competent or has the capacity to execute the record; or
“(2) The individual’s signature is knowingly and voluntarily made” (WVC 39-4-8[b]).General Grounds: “A notarial officer may refuse to perform a notarial act unless refusal is prohibited by law other than this article” (WVC 39-4-8[b]).
Incomplete Documents
“Does the document need to be completed before being notarized? – Yes. Never notarize a blank document” (website, “Notary Public Frequently Asked Questions”).
Signature by Proxy
“If an individual is physically unable to sign a record, the individual may direct an individual other than the notarial officer to sign the individual’s name on the record. The notarial officer shall insert ‘Signature affixed by (name of other individual) at the direction of (name of individual)’ or words of similar import” (WVC 39-4-9).
Exploitation of the Elderly
“Because of their frequent interaction with vulnerable West Virginians, notaries public are uniquely situated to recognize and report potential abuse, neglect and/or financial exploitation. Financial exploitation is the intentional misappropriation or misuse of funds or assets of an elderly person, protected person or incapacitated adult. Anyone who depends on someone else for any or all of his/her personal needs may be vulnerable. Most often abuse, neglect and/or financial exploitation are/is committed by someone the victim trusts” (NH).
The common warning signs of such abuse are (NH): the signer seems unclear about the documents being presented for notarization; the signer seems to be afraid of the person(s) accompanying him or her; the signer seems to be pressured into signing a document; and the signer is making a lot of changes to the same documents in a short period of time.
“If you suspect someone is being abused, neglected or financially exploited, report the activity immediately to your local county Department of Health and Human Resources (DHHR). You may also call the Abuse Hotline at 1-800-352-6513. If you suspect someone is in immediate danger, call 911” (NH).
Disqualifying Interest
Personal and Direct Beneficial Interest: “A notarial officer may not perform a notarial act with respect to a record to which the officer or the officer’s spouse is a party, or in which either of them has a direct beneficial interest, financial or otherwise. A notarial act performed in violation of this subsection is voidable” (WVC 39-4-4[b]).
Relatives: WVC 39-4-4(b), cited above, prohibits a Notary from notarizing a record in which the officer’s spouse is a party, or in which the Notary’s spouse has a direct beneficial interest.
“Do not notarize papers for members of your immediate family if you could receive money or property interest from the transaction” (NH).
“May I notarize documents for family members? – If you are a named party to the transaction or may receive direct benefit, such as cash, property or title from the transaction, you have a disqualifying interest and must refrain from notarizing any such documents” (website, “Notary Public Frequently Asked Questions”).Employee-Notaries: “An employee of a company or agency is allowed to notarize documents prepared by an employer if it is part of the regular duties of the job, and no extra compensation is given as a result” (NH).
“May an employee notarize documents for an employer? – Employees may notarize for an employer, providing the transaction does not stand to benefit the notary in excess of their normal salary and benefits” (website, “Notary Public Frequently Asked Questions”).Attorneys: “An attorney who has prepared documents for a client should have a third party perform the notarization” (NH).
Stamp and Sign
“Is it enough to just sign my name and put my stamp on a document? – No, unless you are completing an acknowledgement or oath form which is already a part of the form. A notarization without the form is improper, and it must always include the date of notarization” (website, “Notary Public Frequently Asked Questions”).
“NEVER just affix your notary stamp and sign your name, because that is not a proper acknowledgment” (NH).
Government Employee Notaries
Limitation: “If you are commissioned as a state or local government employee you are only authorized to notarize documents of the office in which you are employed” (NH). The cost of becoming a Notary is borne by the state or local government office (WVC 39-4-31[c]).
Remittance of Fees: “All fees received for notarial services by a government notary public appointed for and in behalf of a state or local government office shall be remitted by him or her to the state or local government office in which he or she is employed” (WVC 39-4-31[d]).
Unauthorized Practice of Law
No Authority: “A commission as a notary public does not authorize an individual to:
“(1) Assist persons in drafting legal records, give legal advice or otherwise practice law;
“(2) Act as an immigration consultant or an expert on immigration matters;
“(3) Represent a person in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship or related matters; or
“(4) Receive compensation for performing any of the activities listed in this subsection” (WVC 39-4-23[a]).Injunctive Relief: “Upon his or her own information or upon complaint of any person, the Attorney General, or his or her designee, may maintain an action for injunctive relief in circuit court against any notary public who renders, offers to render or holds himself or herself out as rendering any service constituting the unauthorized practice of the law. Any organized bar association in this state may intervene in the action, at any stage of the proceeding, for good cause shown. The action may also be maintained by an organized bar association in this state or by the Secretary of State” (WVC 39-4-34).
Advertisements
Deceptive Advertising: “A notary public may not engage in false or deceptive advertising” (WVC 39-4-23[b]).
Use of ‘Notario’: “A notary public, other than an attorney licensed to practice law in this state, may not use the term ‘notario’ or ‘notario publico’” (WVC 39-4-23[c]).
Mandatory Notice: “A notary public, other than an attorney licensed to practice law in this state, may not advertise or represent that the notary public may assist persons in drafting legal records, give legal advice, or otherwise practice law. If a notary public who is not an attorney licensed to practice law in this state in any manner advertises or represents that the notary public offers notarial services, whether orally or in a record, including broadcast media, print media and the internet, the notary public shall include the following statement, or an alternate statement authorized or required by the Secretary of State, in the advertisement or representation, prominently and in each language used in the advertisement or representation: ‘I am not an attorney licensed to practice law in this state. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities’. If the form of advertisement or representation is not broadcast media, print media or the internet and does not permit inclusion of the statement required by this subsection because of size, it must be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed” (WVC 39-4-23[d]).
In-Person Electronic Notarial Acts
Applicable Law
Uniform Electronic Transactions Act: West Virginia has adopted the Uniform Electronic Transactions Act (WVC 39A-1-1 through 39A-1-17), including the provision on notarization: “If a law requires a signature or record to be notarized, acknowledged, verified or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record” (WVC 39A-1-11).
Uniform Real Property Electronic Recording Act: West Virginia has enacted the Uniform Real Property Electronic Recording Act (WVC 39A-4-1 through 39-A-7), including the provision on notarization: “A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature on a document that complies with the electronic notarization procedure under §39-4-19 of this code and §153 CSR 45” (WVC 39A-4-3[c]).
Revised Uniform Law on Notarial Acts: Effective July 1, 2014, the state of West Virginia adopted the Revised Uniform Law on Notarial Acts, putting in place basic statutory provisions enabling the performance of notarial acts with respect to electronic records. These provisions are summarized below.
Code of State Rules 153-45: To implement the electronic notarization provisions of the RULONA, the West Virginia Secretary of State has created a new chapter 153-45 in the Code of State Rules, called “Standards and Guidelines for Electronic Notarization” (W.Va. 153 CSR 45). These rules are summarized below.
Technology Systems
Approval of System Providers: Not required.
List of System Providers: List of System Providers: The Secretary of State maintains a list of vendors whose technology systems are offered to West Virginia Notaries (website, “eNotarization). “The technology you choose must meet the requirements set forth in West Virginia 153 CSR 45. There are several vendors that provide this technology. The following is a list of Secretary of State vendors who have indicated that they meet the requirements set for in WV 153 CSR 45.” The list may be found at https://sos.wv.gov/business/Pages/eNotarization.aspx.
Tamper-Evident Technology: “A notary public may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. A person may not require a notary public to perform a notarial act with respect to an electronic record with a technology that the notary public has not selected” (WVC 39-4-19[a]).
Requirements for Electronic Act: An electronic notary public may perform an electronic notarization only if the principal:
(a) Is in the presence of the notary at the time of notarization;
(b) Is personally known to the notary or identified by the notary through satisfactory evidence;
(c) Appears to understand the nature of the transaction;
(d) Appears to be acting of his or her own free will;
(e) Communicates directly with the notary in a language both understand; and
(f) Reasonably establishes the electronic signature as his or her own (CSR 153-45-9).All Notary Rules Apply: “In performing electronic notarial acts, an electronic notary shall adhere to all applicable rules governing notarial acts provided in this rule, 153 CSR 46A, and W.Va Code 39-1-1, et seq” (CSR 153-45-10.1).
Journal of In-Person Electronic Notarial Acts: For the rules permitting Notaries to keep a journal of electronic notarizations, see “Records of Notarial Acts,” below.
Employer Prohibitions: “An employer of an electronic notary shall not use or control the means for producing registered electronic signatures and notary seals, or registered single elements combining the required features of both, nor upon termination of a notary’s employment, retain any software, coding, disk, certificate, card, token, or program that is intended exclusively to produce a registered electronic signature, notary seal, or combined single element, whether or not the employer financially supported the employee’s activities as a notary” (CSR 153-45-15.1).
Disposition of Software and Hardware: “When the commission of an electronic notary, remote online notary, or remote ink notary, expires or is resigned or revoked, when registration terminates as an electronic notary, remote online notary, or remote ink notary, or when a notary dies, the notary or the notary’s duly authorized representative within 30 business days shall permanently erase or expunge the software, coding, disk, certificate, card, token, or program that is intended exclusively to produce registered electronic notary seals, perform remote online notarial acts or remote ink notarial acts, registered single elements combining the required features of an electronic signature and notary seal, or registered electronic signatures that indicate status as a notary” (CSR 153-45-25.1).
Remote Notarial Acts
Applicable Law
Revised Uniform Law on Notarial Acts: Effective June 17, 2021, West Virginia added Sections 39-4-37 and 39-4-38 to the West Virginia Code, authorizing two forms of remote notarization.
Code of State Rules 153-45: The West Virginia Secretary of State has adopted rules for remote electronic notarization during a state of emergency under certain circumstances (W.Va. 153 CSR 45).
Remote “Online” and “Ink” Notarization: West Virginia has enacted “remote ink notarization” provisions alongside remote online notarization its provisions. While with a remote online notarization, the “record” that is notarized may be in paper or electronic form, with a remote ink notarization, the “document” is paper only. Remote ink notarization provisions align with the temporary remote notarization provisions authorized during the COVID-19 state of emergency.
Technology Systems
Approval of System Providers: Not required.
List of System Providers: The Secretary of State maintains a list of vendors whose technology systems are offered to West Virginia Notaries (website, “eNotarization). “The technology you choose must meet the requirements set forth in West Virginia 153 CSR 45. There are several vendors that provide this technology. The following is a list of Secretary of State vendors who have indicated that they meet the requirements set for in WV 153 CSR 45.” The list may be found at https://sos.wv.gov/business/Pages/eNotarization.aspx.
Confirmation of Record: “A notary public located in this state may perform a notarial act using communication technology for a remotely located individual if … [t]he notary public is reasonably able to confirm that a record before the notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature” (WVC 39-4-37[c][2]).
Audio-Visual Recording: For the requirement that a Notary who performs a remote online notarization must keep an audio-visual recording of the notarial act, see “Records of Notarial Acts,” below.
Remotely Located Individual Located Outside the United States: “A notary public located in this state may perform a notarial act using communication technology for a remotely located individual if: … [f]or a remotely located individual located outside the United States:
“(A) The notary public is commissioned as an Out-of-State Commissioner pursuant to §39-4A-1 et seq. of this code; and
“(B) The record:
“(i) Is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of West Virginia; or
“(ii) Involves property located in or a transaction substantially connected with West Virginia” (WVC 39-4-37[c][4]).
Remote Ink Notarization
Notification and Registration: A Remote Ink Notary must follow all the applicable rules as an Electronic Notary in registering with the Secretary of State. See “Notification and Registration” under “Electronic Notarial Acts,” above.
Real-Time Communication: “A document may be notarized for an individual who is not in the physical presence of the notary public at the time of the notarization if … [t]he individual and the notary can communicate simultaneously, in real time, by sight and sound using communication technology defined in §39-4-37 of this code” (WVC 39-4-38[a][1]).
Identification of Individual: “A document may be notarized for an individual who is not in the physical presence of the notary public at the time of the notarization if … [i]n performing a remote notarization pursuant to the provisions of this section, the notary reasonably identifies the individual at the time of notarization by one or more of the following methods:
“(A) Personal knowledge of the individual;
“(B) The individual presents a government-issued, unexpired identification document or record which includes the individual’s photograph, name, and signature. Common acceptable forms of identification documents include, but are not limited to, a driver’s license, government-issued identification card, or passport;
“(C) At least two different types of processes or services by which a third person provides a means to verify the identity of the individual through a review of public or private data sources; or
“(D) Oath or affirmation by a credible witness who:
“(i) Is in the physical presence of either the notary or the individual; or
“(ii) Is able to communicate in real time with the notary and the individual by sight and sound through an electronic device or process at the time of the notarization, if the credible witness has personal knowledge of the individual and has been reasonably identified by the notary by a method provided in this section” (WVC 39-4-38[a][2]).Individual Located Outside West Virginia: “When an individual who is physically located outside of the state of West Virginia seeks a remote notarization pursuant to this section, the following additional requirements shall also be met:
“(1) The notary must be commissioned as an Out-of-State Commissioner pursuant to §39-4A-1 et seq. of this code; and
“(2) The record being notarized must:
“(A) Be intended for filing or presentation in a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of West Virginia;
“(B) Involve property located in the territorial jurisdiction of West Virginia or a transaction substantially connected to the state of West Virginia; or
“(C) Otherwise not be prohibited, by West Virginia law to be notarized outside the state of West Virginia.Mailing Signed Document: “Once signed by the individual according to the procedures set forth in this section, the individual shall mail or otherwise cause to be delivered the signed original copy of the documents to the notary public for certification and execution with the notary’s commission signature and official stamp or seal” (WVC 39-4-38[d]).
Date of Notarial Act: “The date and time of the notarization shall be the date and time when the notary witnessed the signature being performed via communication technology” (WVC 39-4-38[e]).
Permissive Act; Refusals: “Nothing in this section affects the authority of a notary public to refuse to perform a notarial act or requires a notary to perform a notarization remotely:
“(1) With respect to an electronic record;
“(2) For an individual not in the physical presence of the notary; or
“(3) Using a technology that the notary has not selected” (WVC 39-4-38[f]).Disposition of Software and Hardware: For the requirements of a remote online Notary and remote ink Notary to properly dispose of software and hardware used to perform remote online or remote ink notarial acts, see “In-Person Electronic Notarial Acts,” above.
Powers of Attorney
In 2012, West Virginia enacted the Uniform Power of Attorney Act, which includes the following provision:
“A power of attorney must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney and must be acknowledged by the principal before a notary public or other individual authorized by law to take acknowledgments” (WVC 39B-1-105).
Self-Proved Wills
“Any or all of the attesting witnesses to any will, at the request of the testator, may make and subscribe an affidavit before any officer authorized to administer oaths, in or out of the State, stating such facts as would be required of them in testimony in court to establish and prove the will; and if the testator shall preserve such affidavits with the will, and the same are produced and offered in evidence when the will is offered for probate, they shall be admissible in evidence and have the same probative value as if the affiants had appeared in court or before the clerk thereof and testified to the facts stated in the affidavit: Provided, that such affidavits shall not be admissible in evidence in any case in which there is a contest over the will” (WVC 41-5-15).
Withholding Records
“Except as otherwise allowed by law, a notary public may not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the notary public” (WVC 39-4-23[e]).
Criminal Misconduct
“A notary public who knowingly and willfully commits any official misconduct is guilty of a misdemeanor and, upon conviction, shall be fined not more than $5,000 or confined in jail not more than one year, or both fined and confined” (WVC 39-4-33[a]).
“A notary public who recklessly or negligently commits any official misconduct is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000” (WVC 39-4-33[b]).
Employers
Leaving Employment: “If my employer pays for my notary commission, what happens if I leave that job? – You are the person who holds the commission, not the employer, and the employer may not have the commission canceled. However, it is your duty to file a change of address and get a new seal immediately if your employer's address is on your seal. If you are a government notary, your commission expires when you terminate employment with (or are terminated by) the agency” (website, “Notary Public Frequently Asked Questions”).
Liability: “The employer of a notary public is also liable to the persons involved for all damages proximately caused by the notary’s official misconduct, if … (t)he notary public was acting within the scope of his or her employment at the time he or she engaged in the official misconduct; and … (t)he employer consented to the notary public’s official misconduct” (WVC 39-4-32[b]).
Validity of Notarial Acts
“Except as otherwise provided in subsection (b), section four of this article, the failure of a notarial officer to perform a duty or meet a requirement specified in this article does not invalidate a notarial act performed by the notarial officer. The validity of a notarial act under this article does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on law of this state other than this article or law of the United States. This section does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts” (WVC 39-4-24).
CERTIFICATE OF NOTARIAL ACT
Certificate Requirements
General Requirement: “A notarial act must be evidenced by a certificate” (WVC 39-4-15[a]).
Specific Requirements: The certificate must:
“(1) Be executed contemporaneously with the performance of the notarial act;
“(2) Be signed and dated by the notarial officer and, if the notarial officer is a notary public, be signed in the same manner as on file with the Secretary of State;
“(3) Identify the jurisdiction in which the notarial act is performed;
“(4) Contain the title of office of the notarial officer; and
“(5) If the notarial officer is a notary public, indicate the date of expiration, if any, of the officer’s commission” (WVC 39-4-15[a]).
Certificate Forms
West Virginia has adopted the Revised Uniform Law on Notarial Acts and the Act’s short-form certificates. These certificate forms and a form prescribed in statute for an oath or affirmation by a military officer appear below.
Acknowledgment by Individual (WVC 39-4-16[1]) State of West Virginia This record was acknowledged before me on _____________(date) by ____________________(name[s] of individual[s]). _________________________ |
Acknowledgment by Representative (WVC 39-4-16[2]) State of West Virginia This record was acknowledged before me on _____________ (date) by ____________________ (name[s] of individual[s]) as _________________(type of authority, such as officer or trustee) of ___________________ (name of party on behalf of whom record was executed). _________________________ |
Verification on Oath or Affirmation (WVC 39-4-16[3]) State of West Virginia Signed and sworn to (or affirmed) before me on ____________ (date) by ______________________ (name[s] of individual[s] making statement). _________________________ |
Signature Witnessing or Attestation (WVC 39-4-16[4]) State of West Virginia Signed or attested before me on ____________(date) by __________________________(name[s] of individual[s] making statement). _________________________ |
Copy Certification (WVC 39-4-16[5]) State of West Virginia I certify that this is a true and correct copy of a record in the possession of _____________________. Dated _______________ _________________________ |
Oath or Affidavit by Military Officer (WVC 57-5-9) IN THE MILITARY SERVICE OF THE UNITED STATES: I, _____________, being duly sworn on oath (or affirmation), do swear (or affirm) that I am a member of the military service of the United States (or of _____________, an auxiliary to the military forces of the United States); that *****, etc. Taken, subscribed and sworn to (or affirmed) before me, ______________, a commissioned officer in the _____________ service of the United States, by ________________, a member of the military service of the United States (or of ________________, an auxiliary to the military forces of the United States), this the _________ day of ________________, 20____. ___________________________ ___________________________ |
Electronic Notarial Certificate
Definition: “‘Electronic notarial certificate’ means the part of, or attachment to, a notarized electronic document that, in the performance of an electronic notarization, is completed by the electronic notary public, bears the notary’s registered electronic signature and seal, and states the date, venue, and facts attested to or certified by the notary in the particular electronic notarization” (CSR 153-45-2.6).
Form of Certificate: According to the Code of State Rules, the wording of an electronic notarial certificate msut be in a form that:
(a) Is set forth in W.Va. Code § 39-4-16;
(b) Is otherwise prescribed by the law of this state;
(c) Is prescribed by a law, regulation, or custom of another jurisdiction, provided it does not require actions by the electronic notary that are unauthorized by this state; or
(d) Describes the actions of the electronic notary in such a manner as to meet the requirements of the particular notarial act, as defined in section 2.5 of the rules (CSR 153-45-11.3).Language of Certificate: “A notarial certificate shall be worded and completed using only letters, characters, and a language that are read, written, and understood by the electronic notary” (CSR 153-45-11.4).
Remote Notarial Certificate
“If a notarial act is performed under this section, the certificate of notarial act required by §39-4-15 of this code and the short-form certificate provided in §39-4-16 of this code must indicate that the notarial act was performed using communication technology” (WVC 39-4-39[d]).
Sufficiency of Certificate
Notarial Acts: “A certificate of a notarial act is sufficient if it meets the requirements of (WVC 39-4-15) subsections (a) and (b) and:
“(1) Is in a short form set forth in (WVC 39-4-16) of this article;
“(2) Is in a form otherwise permitted by the law of this state;
“(3) Is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or
“(4) Sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in sections five, six and seven of this article or law of this state other than this article” (WVC 39-4-15[c]).Remote Notarial Acts: “A short-form certificate provided in §39-4-16 of this code for a notarial act subject to this section is sufficient if it:
“(1) Complies with rules adopted under subdivision (1), subsection (h) of this section; or
“(2) Is in the form provided in §39-4-16 of this code and contains a statement substantially as follows: ‘This notarial act involved the use of communication technology’” (WVC 39-4-37[e]).
Attachment of Certificate
“If a notarial act is performed regarding a tangible record, a certificate must be part of, or securely attached to, the record. If a notarial act is performed regarding an electronic record, the certificate must be affixed to or logically associated with, the electronic record. If the Secretary of State has established standards pursuant to section twenty-five of this article, for attaching, affixing, or logically associating the certificate, the process must conform to the standards” (WVC 39-4-15[f]).
Missing Certificate Form
“If the form is missing, you are responsible for writing the proper form of acknowledgment to complete the notarization” (NH).
SEAL AND SIGNATURE
Definitions
“‘Official stamp’ means a physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record” (WVC 39-4-2[8]).
“‘Stamping device’ means:
”(A) A physical device capable of affixing to or embossing on a tangible record an official stamp; or
”(B) An electronic device or process capable of attaching to or logically associating with an electronic record an official stamp” (WVC 39-4-2[13]).“‘Electronic notary seal’ and ‘electronic seal’ mean information within a notarized electronic document that includes the electronic notary’s name, title, jurisdiction, and commission expiration date and other information required by subsection 11.2.c of this rule” (CSR 153-45-2.8).
“‘Registered electronic notary seal” means an electronic notary seal produced by a notary in the performance of an electronic notarial act by a means that was registered with the Secretary of State” (CSR 153-45-2.10).
Official Stamp Requirement
Notarial Acts
Notaries Public: Required.
“If a notarial act regarding a tangible record is performed by a notary public, an official stamp must be affixed to the certificate” (WVC 39-4-15[b]).Other Notarial Officers: Permitted.
If a notarial act is performed regarding a tangible record by a notarial officer other than a notary public and the certificate contains the information specified in subdivisions (2) (3) and (4), subsection (a) of this section (i.e., the notarial officer’s title, signature and date of signing, and the jurisdiction where the notarization is performed), an official stamp may be affixed to the certificate” (WVC 39-4-15[b]).
In Person Electronic Notarial Acts
Notaries Public: Permitted.
“If a notarial act regarding an electronic record is performed by a notarial officer and the certificate contains the information specified in said subdivisions, an official stamp may be attached to or logically associated with the certificate” (WVC 39-4-15[b]).Other Notarial Officers: Permitted.
“If a notarial act regarding an electronic record is performed by a notarial officer and the certificate contains the information specified in said subdivisions, an official stamp may be attached to or logically associated with the certificate” (WVC 39-4-15[b]).
Remote Notarial Acts
Notaries Public: Required for paper remote notarial acts (WVC 39-4-15[b]; 39-4-38[d]) and permitted for electronic remote notarial acts (WVC 39-4-15[b]).
Other Notarial Officers: Notarial officers other than Notaries Public are not authorized to perform remote notarial acts under West Virginia law.
Electronic Real Property Records: Not required.
“A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature on a document that complies with the electronic notarization procedure under §39-4-19 of this code and §153 CSR 45” (WVC 39A-4-3[c]).
Seal Format
Notarial Acts
Inked Rubber Stamp: “The official stamp of a notary public must … [b]e capable of being copied together with the record to which it is affixed or attached or with which it is logically associated” (WVC 39-4-17[2]).
Embosser: “The embossed seal is permitted by West Virginia law, but not required. Also, it is not acceptable as a substitute for a rubber stamp seal” (website, “The Notary Seal”).
Shape/Size: “A notary public’s official seal may be no larger than one inch by two and one half inch” (CSR 153-46-2.2).
Border: The rectangular stamp must have a border surrounding the components listed below (CSR 153-46-2.1[h]). An example of the official stamp on the Secretary of State’s website contains a milled or serrated edge border (website, “The Notary Seal”).
Components: “The official stamp of a notary public must…(i)nclude the notary public’s name, address, jurisdiction, commission expiration date and other information required by the Secretary of State…” (WVC 39-4-17[1]). The West Virginia Secretary of State requires Notary seals to contain the following (website, “The Notary Seal”):
“Official Seal”;
“State of West Virginia”;
“Notary Public”;
Notary’s name;
Business name (if a business address is used);
Notary’s address (residence or business);
Notary’s commission expiration date;
Border.
Optional: An image of the state seal is optional (website, “The Notary Seal”).
Embosser Elements: If the Notary opts to obtain and use an embosser seal in addition to the mandatory inked rubber stamp seal, the embosser must include the following (website, “The Notary Seal”):
“Notary Seal”;
Notary’s name;
“Notary Public”;
“State of West Virginia”.
“The embossed seal is permitted by West Virginia law, but not required. Also, it is not acceptable as a substitute for a rubber stamp seal” (website, “The Notary Seal”).
In-Person Electronic Notarial Acts: According to the West Virginia Code of State Rules, the components of the electronic notary seal are: the words “Official Seal”; the words “Electronic Notary Public”; the words “State of West Virginia”; the Notary’s name as it is spelled on the commissioning document; the Notary’s address as it is listed on the commissioning document; the Notary’s commission expiration date; an image of the West Virginia State Seal; and the commission or registration number of the Electronic Notary (CSR 153-45-11.2).
Remote Notarial Acts: The official stamp must conform to the requirements for notarial acts if the Notary Public performs remote notarial acts on paper records. The format of the official electronic stamp, if used, must conform to the format requirements for the electronic Notary seal in CSR 153-45-11.2).
Examples
The below typical, actual-size examples of official Notary stamping devices and electronic Notary seals which are allowed by West Virginia law. Formats other than these may also be permitted.
Placement and Legibility of Official Stamp
“A notary must use the rubber stamp seal on every notarization, usually under the acknowledgement, and the seal must be placed on the document so that the information is legible” (website, “The Notary Seal”).
Obtaining a Stamping Device
“When you order [an official stamp], send a photocopy of your commission letter which will include the exact information which is to be included on the seal, and the order form specifications from this office. That way, if there is an error, the company should remake it at no extra charge. The name and address must be exactly as you were commissioned, and you must sign all notarizations with that name” (website, “The Notary Seal”).
Security of Stamping Device
“A notary public is responsible for the security of the notary public’s stamping device and may not allow another individual to use the device to perform a notarial act” (WVC 39-4-18[a]).
“The security of the seal is liability protection for a notary public. Keep the seal in a safe place, where it can't be used or taken by anyone” (website, “The Notary Seal”).
Lost or Stolen Stamping Device
Notification Required: “If a notary public’s stamping device is lost or stolen, the notary public or the notary public’s personal representative or guardian shall notify promptly the Secretary of State on discovering that the device is lost or stolen” WVC 39-4-15[b]).
Unlawful Possession of Stamping Device: “Any person who unlawfully possesses a notary’s official seal or any papers or copies relating to notarial acts, is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000” (WVC 39-4-33[d]).
Destruction of Stamping Device
“On resignation from, or the revocation or expiration of, the notary public’s commission, or on the expiration of the date set forth in the stamping device, the notary public shall disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable. On the death or adjudication of incompetency of a notary public, the notary public’s personal representative or guardian or any other person knowingly in possession of the stamping device shall render it unusable by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable” (WVC 39-4-18[a]).
Electronic Notary Seal
Official Acts Only: “Neither a registered electronic notary seal nor a combined single element containing the seal may be used by the electronic notary for any purpose other than performing lawful electronic notarizations” (CSR 153-45-16.2).
Notary’s Signature
Original Signature: “You must hand-write your original signature (rather than use a reproduction)” (NH).
“Always sign your name exactly as it appears on your seal, which should be identical and in the same manner as to what is on file in the Secretary of State’s Office” (NH).Name Change: If the Notary has informed the Secretary of State of a name change but not yet obtained a new seal, the Notary may affix the old seal and sign the new official name, writing, “Commissioned as _________ (old official name),” underneath the signature (NH).
Affixed at Time of Act: “A notarial officer may not affix the officer’s signature to, or logically associate it with, a certificate until the notarial act has been performed” (WVC 39-4-15[e]).
Notary Electronic Signature
Definition: “‘Registered electronic signature’ means an electronic signature produced by a notary in the performance of an electronic notarial act by a means that was registered with the Secretary of State” (CSR 153-45-2.11).
Requirements: The Code of State Rules provides that a registered electronic signature must be:
(a) Unique to the electronic notary public;
(b) Capable of independent verification;
(c) Attached to or logically associated with an electronic notarial certificate in such a manner than any subsequent alteration of the certificate or underlying electronic document prominently displays evidence of the alteration; and
(d) Attached or logically associated by a means under the electronic notary’s sole control (CSR 153-45-13).
“‘Capable of independent verification’ means that any interested person may confirm the validity of an electronic notarial act and an electronic notary public’s identity and authority through a publicly accessible system” (CSR 153-45-2.1).In-Person Electronic Notarial Acts Only: “A registered electronic signature may be used by the electronic notary for lawful purposes other than performing electronic notarizations, provided that neither the title ‘notary’ nor any other indication of status as a notarial officer is part of the signature” (CSR 153-45-16.1).
Attribution of Electronic Signature, Seal
“In notarizing an electronic document …, the notary shall attach to, or logically associate with, the electronic notarial certificate a registered electronic signature and a registered electronic notary seal, or a registered single element in conformance with section 6 of this rule, in such a manner that the signature and the seal, or the single element, are attributed to the notary as named on the commission” (CSR 153-45-12.1).
Security of Electronic Seal, Signature
“At all times the means for producing registered electronic notary seals, or registered single elements as described in section 6 of this rule, must be kept under the sole control of the electronic notary” (CSR 153-45-14.1).
“If the means for producing registered electronic notary seals, or registered single elements as described in section 6 of this rule are accessed by a username and password, the electronic notary must maintain sole control of the access information” (CSR 153-45-14.2).
RECORDS OF NOTARIAL ACTS
Records Requirement
Journal
Notarial Acts: Not required.
“In West Virginia, notaries are not required to keep a journal of their acts. However, if you are concerned about liability, keeping a notary journal listing the date, person’s name and type of document notarized will help protect you” (NH).In-Person Electronic Notarial Acts: Permitted.
“A notary public who performs an electronic notarial act … may keep, maintain, protect, and provide for lawful inspection a chronological journal of notarial acts that is either:
“(a) A permanently bound book with numbered pages; or
“(b) An electronic journal of notarial acts as described in section 18 of the rules” (CSR 153-45-17.1).Remote Notarial Acts: Permitted.
“A notary public who performs … [a] remote online notarial act, or remote ink notarial act, may keep, maintain, protect, and provide for lawful inspection a chronological journal of notarial acts that is either:
“(a) A permanently bound book with numbered pages; or
“(b) An electronic journal of notarial acts as described in section 18 of the rules (CSR 153-45-17.1).
Recording of Remote Notarial Acts: Required.
Remote Online Notarizations: “A notary public located in this state may perform a notarial act using communication technology for a remotely located individual if: … [t]he notary public, or a person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act” (WVC 39-4-37[c][3]).
Remote Ink Notarizations: “(b) The notary, either directly or through an agent, shall satisfy the following requirements for generating and retaining a record of a notarization performed pursuant to this section:
“(1) At the time of the performance of the notarization, the notary or notary’s agent shall create an audio and visual recording of the signing and notarization; and
“(2) The notary or notary’s agent shall retain the recording as a notarial record for five years unless otherwise provided by law” (WVC 39-4-38[b]).
Fee Law
The notarial fee statute (WVC 39-4-30) indicates that Notaries charge for the “notarization of each signature and the proper recordation thereof in the journal of notarial acts …” This statute also states that, in certifying a facsimile of an original record, a Notary keeps an additional facsimile in an official file, in addition to recording the certification in the journal of notarial acts.
Electronic Journal of In-Person Electronic, Remote Notarial Acts
Definition: “‘Electronic journal of notarial acts’ and ‘electronic journal’ mean a chronological electronic record of notarizations that is maintained by the notary public who performed the same notarizations” (CSR 153-45-2.4).
Requirements: An electronic journal of notarial acts must: (a) allow journal entries to be made, viewed, printed out, and copied only after access is obtained by a procedure that uses two factors of authentication; (b) not allow a journal entry to be deleted or altered in content or sequence by the notary or any other person after a record of the notarization is entered and stored; (c) have a backup system in place to provide a duplicate record of notarial acts as a precaution in the event of loss of the original record (CSR 153-45-18).
“A notary may keep a record of electronic and nonelectronic notarial acts in the same journal” (CSR 153-45-17.2).
Retention of Recordings
“A notary public, a guardian, conservator, or agent of a notary public, or a personal representative of a deceased notary public shall retain the audio-visual recording created under subdivision (3), subsection (c) of this section or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by rule adopted under subdivision (4), subsection (h) of this section, the recording must be retained for a period of at least five years after the recording is made” (WVC 39-4-37[f]).
Unlawful Possession of Notary’s Papers
“Any person who unlawfully possesses a notary’s official seal or any papers or copies relating to notarial acts, is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000” (WVC 39-4-33[d]).
FEES FOR NOTARIAL ACTS
Maximum Fees
“The maximum fee in this state for notarization of each signature and the proper recordation thereof in the journal of notarial acts is $10.00 for each signature notarized” (WVC 39-4-30[a]).
Copy Certifications
“The maximum fee in this state for certification of a facsimile of a document, retaining a facsimile in the notary’s file, and the proper recordation thereof in the journal of notarial acts is $10.00 for each eight and one-half by eleven-inch page retained in the notary’s file” (WVC 39-4-30[b]).
Other Notarial Acts
“The maximum fee in this state is $10.00 for any other notarial act performed” (WVC 39-4-30[c]).
Government Employee Notaries
“All fees received for notarial services by a government notary public appointed for and in behalf of a state or local government office shall be remitted by him or her to the state or local government office in which he or she is employed” (WVC 39-4-31[d]).
REAL ESTATE PRACTICES
Notary Signing Agents
West Virginia is considered an “attorney-only” state in which only a licensed member of the state bar may conduct a real estate or loan closing. Thus, under West Virginia law, a non-attorney Notary Signing Agent may not notarize at closings unless under the supervision of an attorney.
West Virginia State Bar Opinion
An opinion issued by the West Virginia State Bar’s Committee on the Unauthorized Practice of Law (Opinion No. 2003-01) explains why no non-attorney may preside at a real estate closing in West Virginia: “Most importantly … it is inherent at the closing itself that buyers and sellers will have questions about the transaction and the document, which answers necessarily go to their respective legal rights and obligations. Such answers are advising on legal matters. Thus, in West Virginia, generally, real estate closings constitute the practice of law. In conclusion, it is clear that as a whole, real estate closings are the practice of law. The Committee presumes that significant harm to the public occurs just by the practice of law by laypersons and holds such practices to be the unauthorized practice of law. The reference to laypersons in this section does not apply to a non-lawyer assistant employed, retained by or associated with a lawyer in accordance with Rule 5.3 of the Rules of Professional Conduct and consistent with all other Rules of Professional Conduct.”
Recording Requirements
“The clerk of the county court [now county commission] of any county in which any deed, contract, power of attorney, or other writing is to be, or may be, recorded, shall admit the same to record in his office, as to any person whose name is signed thereto, when it shall have been acknowledged by him, or proved by two witnesses as to him, before such clerk of the county court [now county commission]” (WVC 39-1-2).
“Every such contract, every deed conveying any such estate or term, and every deed of gift, or deed of trust or memorandum of deed of …, or mortgage, conveying real estate shall be void, as to creditors, and subsequent purchasers for valuable consideration without notice, until and except from the time that it is duly admitted to record in the county wherein the property embraced in such contract, deed, deed of trust or memorandum of deed of trust or mortgage may be” (WVC 40-1-9).
RECOGNITION OF NOTARIAL ACTS
Notarial Acts in West Virginia
“(a) A notarial act may be performed in this state by:
“(1) A notary public of this state;
“(2) A judge, clerk or deputy clerk of a court of this state; or
“(3) Any other individual authorized to perform the specific act by the law of this state.
“(b) The signature and title of an individual performing a notarial act in this state are prima facie evidence that the signature is genuine and that the individual holds the designated title.
“(c) The signature and title of a notarial officer described in subdivision (1) or (2), subsection (a) of this section, conclusively establish the authority of the officer to perform the notarial act” (WVC 39-4-10).
Notarial Acts in U.S. State or Jurisdiction
“(a) A notarial act performed in another state has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed in that state is performed by:
“(1) A notary public of that state;
“(2) A judge, clerk or deputy clerk of a court of that state; or
“(3) Any other individual authorized by the law of that state to perform the notarial act.
“(b) The signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title.
“(c) The signature and title of a notarial officer described in subdivision (1) or (2), subsection (a) of this section, conclusively establish the authority of the officer to perform the notarial act” (WVC 39-4-11)”.
Notarial Acts Under Authority of Federally Recognized Indian Tribe
“(a) A notarial act performed under the authority and in the jurisdiction of a federally recognized Indian tribe has the same effect as if performed by a notarial officer of this state, if the act performed in the jurisdiction of the tribe is performed by:
“(1) A notary public of the tribe;
“(2) A judge, clerk or deputy clerk of a court of the tribe; or
“(3) Any other individual authorized by the law of the tribe to perform the notarial act.
“(b) The signature and title of an individual performing a notarial act under the authority of and in the jurisdiction of a federally recognized Indian tribe are prima facie evidence that the signature is genuine and that the individual holds the designated title.
“(c) The signature and title of a notarial officer described in subdivision (1) or (2), subsection (a) of this section, conclusively establish the authority of the officer to perform the notarial act” (WVC 39-4-12).
Notarial Act Under Federal Law
“(a) A notarial act performed under federal law has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed under federal law is performed by:
“(1) A judge, clerk or deputy clerk of a court;
“(2) An individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law;
“(3) An individual designated a notarizing officer by the United States Department of State for performing notarial acts overseas; or
“(4) Any other individual authorized by federal law to perform the notarial act.
“(b) The signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title.
“(c) The signature and title of an officer described in subdivision (1), (2) or (3), subsection (a) of this section, conclusively establish the authority of the officer to perform the notarial act” (WVC 39-4-13).
Notarial Act in Foreign State
“(a) In this section, “foreign state” means a government other than the United States, a state or a federally recognized Indian tribe.
“(b) If a notarial act is performed under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, the act has the same effect under the law of this state as if performed by a notarial officer of this state.
“(c) If the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.
“(d) The signature and official stamp of an individual holding an office described in subsection (c) of this section are prima facie evidence that the signature is genuine and the individual holds the designated title.
“(e) An apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the Convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
“(f) A consular authentication issued by an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office” (WVC 39-4-14).
Commissioners
Effective June 7, 2019, West Virginia Senate Bill 669 allows a West Virginia Notary Public to be appointed as a commissioner. A commissioner is appointed by the Secretary of State to take acknowledgments of deeds, leases and other writings in or outside of West Virginia that are destined for record in West Virginia. Thus, West Virginia commissioners’ official acts are duly recognized under the Revised Uniform Law on Notarial Acts.
AUTHENTICATION OF NOTARIAL ACTS
Secretary of State
Authenticating certificates for Notaries, including apostilles, are issued only by the office of West Virginia’s Secretary of State.
Fees: $10 for a certificate authenticating the act of a Notary or county clerk, or for an apostille. The cost for multiple certifications of various documents from the same Notary or public official is $10 for the first certification and $5 for each additional (website, “Authentication of Documents for International Use”).
Addresses:
West Virginia Secretary of State’s Office
Attn: Business & Licensing Division
1900 Kanawha Blvd., East
Charleston, WV 25305
Phone: 304-558-8000
One-Stop Business Center
1615 Washington Street East
Charleston, WV 25311
Phone: 304-558-8000
North Central WV Business Hub
200 West Main Street
Clarksburg, WV 26301
Phone: 304-367-2775
Eastern Panhandle Business Hub
229 E. Martin Street
Martinsburg, WV 25401
Phone: 304-356-2654Procedure: Mail or present in person the original notarized document(s), along with the appropriate fee and a completed “Apostille and Certification Request Form.” Indicate the nation to which the document will be sent and the return address. “If you would like the document(s) returned to you any way other than by regular USPS mail, please enclose a prepaid envelope” (website, “Apostille and Certification Request Form”). Complete requests with paper documents received by mail will generally be prepared and mailed back within 48 hours.
FBI Background Checks: “FBI Background Checks that need to have an apostille or certification affixed to the document must go through the U.S. Department of State” (Secretary’s website, “Authentication of Documents for International Use – Frequently Asked Questions”).
School Transcripts and Diplomas: “Foreign exchange students or students traveling out of the country may need their school transcripts and/or diplomas certified or notarized in order to obtain a certification or an apostille from the Secretary of State’s office. It is important that the notary properly certifies the documents or notarizes the signature of the proper authority of the school who is attesting to the validity of the documents. Failure to perform the notarization properly may cause a rejection of the documents by the Secretary of State’s Office, or a rejection from the other country to which they are being sent, and may affect the student’s ability to continue in the foreign exchange program” (NH).
Electronic Records: “On a notarized electronic document transmitted to another country or nation, electronic evidence of the authenticity of the registered electronic signature and seal of an electronic notary public of this state, if required, must be in the form of an electronic certificate of authority signed by the Secretary of State in conformance with any current and pertinent international treaties, agreements, and conventions subscribed by the government of the United States (CSR 153-45-19.1).
“The electronic certificate of authority described in subsection 20.1 must be attached to or logically associated with the electronically notarized document in such a manner that any subsequent alteration of the notarized document, or removal or alteration of the electronic certificate of authority, produces evidence of the change” (CSR 153-45-19.2).
The form of a certificate of authority for an electronic notarial act is prescribed by CSR 153.45-20.1.
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