Beginning next month, some Arizonans signing legal documents will have to do something new. After signing a deed or power of attorney, they’ll also have to leave a thumbprint in the notary’s journal.
It sounds a little like being booked into jail. It’s actually part of Arizona’s latest effort to prevent real estate fraud.
Whose thumbprint, and when?
Earlier this year, the Arizona Legislature adopted Senate Bill 1479. Among other things, the new law requires a notary public to collect a fingerprint when notarizing some docuements. Particularly affected: deeds and other document affecting real property, and powers of attorney.
The preferred digit is your right thumb. If that’s unavailable, the left thumb will do. Neither thumb available? Any available finger will suffice. If you are physically unable to provide a fingerprint at all, the notary must note and explain that.
So, no, failure to have two working thumbs will not prevent you from selling your house.
There are a few exceptions. The new rule doesn’t apply to a trustee’s deed following a foreclosure or to a deed of release and reconveyance. It also doesn’t require a thumbprint for a qualifying remote online notarization, where other identification and record-keeping requirements take its place. That’s actually a pretty rare exception, since we are not seeing much remote online notarization in practice.
Why are they doing this?
The target is deed fraud.
Imagine that someone prepares a deed transferring your house to themselves, forges your signature and manages to get the document recorded. Eventually the fraud can be sorted out, but “eventually” is not a particularly comforting word when the subject is ownership of your house.
A thumbprint in the notary’s journal doesn’t make fraud impossible. But it does create one more piece of evidence that the person who supposedly signed the deed was actually the person who appeared before the notary.
The Legislature did more than add the thumbprint requirement. The same legislation makes knowingly recording a forged, groundless or otherwise invalid real-property document a class 5 felony. It also provides substantial civil remedies for the victim.
And by January 1, 2027, Arizona county assessors must offer a free, voluntary notification system. Property owners who sign up can be alerted by email, text message or similar means when the assessor receives notice of a change in ownership of their property—or even a change in the owner’s mailing address.
Pima County’s Recorder has already rolled out a version, called the “Fraud Notify” program. You don’t have to wait until next year. That might be worth signing up for even if you never encounter an ink pad.
Why these documents?
When our clients come in to sign their estate planning documents, they probably think that their will is the document that needs the most protection. But if they’re signing just a will — or even a will and a trust — they won’t be subject to the new thumbprint requirement. That doesn’t stop the notary from asking for a thumbprint, but it’s not required.
But the powers of attorney (both financial and health care) our clients sign will need a thumbprint in the notary’s journal. And if there is a deed (say, one transferring real estate into the trust’s name) that will definitely call for a thumbprint.
An interesting question for Arizona lawyers
Arizona has one other wrinkle. State law allows an active Arizona lawyer to perform a notarial act even if the lawyer isn’t a commissioned notary public. But the new statute specifically says that a “notary public” must obtain the thumbprint and put it in the “notary’s journal.” Does that mean a lawyer taking an acknowledgment under the lawyer-notarization statute doesn’t need a thumbprint?
The wording certainly makes the question interesting. Whether the Legislature actually intended to create that distinction is another matter, and we wouldn’t recommend volunteering as the test case. But our best guess — and we emphasize that it is just a guess at this early point — is that a lawyer’s “notarization” probably doesn’t require a thumbprint. Or, for that matter, a journal.
And what happens if the notary doesn’t collect a thumbprint?
The notary’s failure to follow the law won’t invalidate your signing. But rest assured — our office notaries aren’t about to break the law.
The penalty for failure to gather a thumbprint at signing (of a deed or power of attorney) is on the notary, not on the signer. Failure to maintain a journal, or failure to keep it in proper order, is cause for a notary public to lose his or her commission. A notary’s failure to keep proper records might even subject them to penalties, possibly including the damages caused by their failure. But that’s not on you, the signer.
What changes at your lawyer’s office?
Not very much.
Estate planning and elder law lawyers regularly prepare deeds. We use them to transfer property into trusts, to make gifts, to deal with property after someone’s death and for a host of other perfectly ordinary reasons. Powers of attorney are even more routine.
After September 12, when one of those documents is notarized in person by a notary public, expect one additional step: (1) sign the document, (2) sign the notary’s journal.
And then (3) give the State of Arizona the thumbs-up.
