I. Introduction
When you are told the Mexican Notario Publico will charge $3,000 dollars to make you the beneficiary of a trust on a Mexican beachfront condo, you certainly know things are different in Mexico. This article will clarify the misconception that commonly occurs when individuals familiar with the American Office of Notary Public encounter a Mexican Notario Publico.
In this document, we will compare the States with the Federal District of Mexico (Mexico City) to illustrate our points; although there may be differences in other American states, these two jurisdictions are generally reflective of their countries’ systems.
II. Qualifications
A candidate to be an American Notary Public must:
- fill out an application
- be at least 18 years of age
- be a legal resident of the State of Texas
- be a legal resident of the United States or a permanent resident alien
- pay applicable fees and post a $2,500 dollar bond
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A candidate to be a Notario Publico in the Federal District of Mexico must:
- be Mexican by birth
- be older than 25 but younger than 60
- have an honest way of making a living
- have a good reputation
- not be the leader of a church
- not have a criminal record
- have studied under a notary for at least 6 months prior
- take a written exam
- be a legal professional and have the professional liscence with the title of lawyer
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In Texas, virtually anyone can qualify and become a Notary Public. The population of the state of Texas is roughly 22.5 million people and is served by approximately 360,000 registered notaries. In comparison, Mexico City has a population of 20 million people and is served by only 267 Notario Publicos. While Texas is served by a notary pool roughly equivalent to 1.6% of its population, Mexico City is served by a population of notaries that equates to roughly 0.0027% of its population.
Mexican Notary positions are extremely sought after due to the limited number of positions and the high earning potential that accompanies the office. Even if a candidate has met the above qualifications and scored well on the written exam, a position is far from guaranteed as new positions are available only when there is a vacancy.
III. Powers and Duties
An American Notary Public may
- take acknowledgements
- protest instruments
- administer oaths
- take depositions
- certify copies of documents not recordable in the public records
- show that a disinterested party duly notifies the validity of a document
- show that the signer is indeed who s/he says s/he is and that his/her reasons for signing are genuine
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A Notario Publico in Mexico City may
- be an arbitrator
- be a mediator
- issue judicial opinions
- intervene in judicial proceedingsxi
- ensure that documents such as bylaws of companies, wills, deeds, powers of attorney, real estate purchases and establishments of trusts do not include any legal inconsistencies, or any other that requires public faithxii
- ensure payment of taxes
- protocolize public deeds
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In Mexico, the incorporation of every company, the buying and selling of all types of real estate, the establishment of deeds and wills, the creation of mortgages, among other transactions, must be protocolized by a Notario Publico. Additionally, in certain cases, failure by a Notario Publico to properly calculate and withhold taxes can result in personal liability. The Colegio de Notarios Publicos for Mexico City notes, "It is the Notario Publico’s responsibility to labor over the document and make sure it is in conformance with the law."
In many respects, the Mexican Notario Publico serves not only as a lawyer but also as a judge in his role as protector of certain law statements. For example, next to the Notario Publico’s signature on a document is the phrase "I Give Faith" (Doy Fe). He is an important part of the way public administration takes place.This is very distinct from the Texas system where, as Guy Joyner, Chief of the Legal Support Unit to the Office of the Texas Secretary of State notes, "A Texas Notary Public's primary duty is to verify a signer's identity and signature, and attest that the signer personally appeared before the Notary at the time the notarization was taken. The Notary is not verifying the truth of the statements in the document. The individual appearing before the Notary and signing the document is responsible for the truth of such statements. The Notary is only responsible for the truth of the statements in the notarial certificate that the Notary completes, which says the person appeared before the Notary and that such person signed or acknowledged his signature on the document on a specified date."
IV. FEES
Texas Notary Publics may charge
- a fixed fee for their services established by the state of Texas
- never exceeding $10 dollars
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A Mexican Notario Publico must charge based on an established fee schedule
- Percentages range from a porcentage of the cost of the transaction.
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The largest fee a Texas Notary Public may charge for his/her services is six dollars. Few, if any, people in Texas earn a living solely from notarial services. In contrast, the Mexican Notario Publico may earn fees into the many thousands of pesos and most Notario Publicos work full time in their notarial practices. In Mexico, it is not uncommon to see many lawyers and secretaries preparing paperwork for the review and approval of the Notario Publico. Given the extensive need for the Notario Publico in all kinds of transactions and their limited availability, good relations with a Notario Publico are vital to the expeditious processing of documentation.
V. Conclusion
The principal difference between the Mexican Notario Publico and a Texas Notary Public is that the Mexican Notario Publico is responsible for the legality of the content of the document when is subscribed by him/her, identity of the signer and certification of documents, deeds, powers of attorney, charters and wills are invalid if are not done under their faith while the Texas Notary Public only certifies the identity of the signer. As Notario Publico Visoso notes, "That is a substantial difference."
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