Notaries Had Enough Trouble in 2020. Then Indiana Botched a Notary Law Update.

Image of an old statue depicting a person with their face in their hand apparently frustrated. Captioned: Indiana's Botched Notary Law Update.

What happened July 1, 2020, when the Indiana Senate tweaked Indiana Code § 32-21-2-3?

Previously, that provision of Indiana law said any conveyance, mortgage or other document to be recorded must simply have the signer acknowledge the document with a notary. Or the document could be proved with a notary and an additional witness. The key term is or — you needed either one or the other. Now, that section of the code has the word and instead of or.

Little words, big problems.

It was “an unintentional drafting error,” wrote Bill Anderson, Government Affairs VP for the National Notary Association, “with potential consequences for notaries in every U.S. jurisdiction.”

So, two different notarizations — an acknowledgement and a proof with a witness — must accompany any paper or electronic instrument submitted for recording. You can see samples of both notarial formats here.

As Indiana senators will henceforth never forget, the tiniest word change in a law’s language matters. The statute is slated to be amended and corrected when Indiana’s General Assembly reconvenes in 2021.


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Understanding Personal Representative Deeds During Probate in Indiana

When we die, another person becomes responsible for managing the assets we leave behind. If we die testate (with a will), this person is called an executor. If we die intestate (without a will), or other specific situations occur, the court supervising the probate estate appoints an administrator. Once the executor or administrator is in place, Indiana laws do not distinguish between the terms, and simply identify this individual as a “personal representative.” See IC 29-1-1-3(23) for the list of titles included under this name.

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Understanding the Indiana Transfer on Death (Ladybird) Deed

Indiana outlines the rules for its transfer on death deed in IC 32-17-14 — the “Transfer on Death Property Act.” The act, which became effective on July 1, 2009, gives owners/grantors of real estate in Indiana the ability to initiate, but not complete, the transfer process to a designated beneficiary while retaining absolute control in the property. This means the owner (grantor) may sell, rent, mortgage or otherwise use the property with no penalty for waste or obligation to the named beneficiary. In addition, because the conveyance does not take effect until the owner’s death, he/she may change or remove, at will, the primary beneficiary, contingent beneficiary, or how multiple beneficiaries will take ownership (joint tenants with rights of survivorship, tenants in common, etc.). IC 32-17-14-16 contains the process for changing or revoking beneficiaries. Because of the potential for change, there is no obligation for the beneficiary/grantee to provide consideration (money or something else of value).

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