With the increase in foreign national persons buying and selling real estate (especially here in South Florida) the need is increasing for a deed, power of attorney, or even a bank mortgage package to be notarized in a foreign country. Here are some basic guidelines to be aware of and plan for:
The only foreign notary accepted in the United States is from Canada. All others must be performed at the American Consulate in the foreign country or in the presence of an Apostille in which the signing party is physically located.
Follow this link for a list of American Consulates: http://www.americanconsulate.com/
Since October 15, 1981, the United States has been part of the 1961 Hague Convention abolishing the Requirement of Legalization for Foreign Public Documents. The Convention provides for the simplified certification of public (including notarized) documents to be used in countries that have joined the convention.
Under the Hague Convention, signatory countries have agreed to recognize public documents issued by other signatory countries if those public documents are authenticated by the attachment of an internationally recognized form of authentication known as an "apostille". The Apostille ensures that public documents issued in one signatory country will be recognized as valid in another signatory country.
There are currently over 60 member states of the Hague convention and in addition to those countries many other countries will also recognize an Apostille certificate (follow the link to a list of these countries).
http://apostille.us/Documents/States_Abolishing_Legalisation_Documents.shtml
If the signing party is in the US at any point during the transaction, have them execute a Power of Attorney before leaving the country. Trust me, it will save you a lot of time and stress!
For example: A buyer lives in Istanbul, Turkey and must execute a Power Of Attorney for his daughter to sign mortgage loan documents on his behalf in the United States. (Always verify that the format of the Power of Attorney is approved by the Mortgage Lender's underwriting department and the Title Insurance Agent's underwriter before proceeding.) The documents are sent to the buyer in Turkey who must take them to the American Consulate or make arrangements to meet with an Apostille. NOTE: Ther servie that you want an Apostille to perform is to authenticate the person's signature. They could authenticate the document instead if you are unclear, but your documents will be returned unsigned by the party whose signature you need! Make sure you are clear about which service you need them to perform: authenticate the signature.
If the party decides to take the documents to the American Consulate be advised that in most countries the person must make an appointment and even then, wait in line upon arrival. The appointments can be difficult to come by depending on the country...they must be required anywhere from a few days to a few months in advance. Also note, if the documents require witnesses, the signing party must bring their own witnesses with them to the appointment.
On one transaction I needed a seller in Spain to sign a deed and a couple of other documents to complete the transaction. The American Consulat was too far for him to travel so he made an appointment with an Apostille. In Spain, the fee for the Apostille is a percentage of the sales price of the property! This property was selling for over $300,000. Thankfully, this seller had a friend who was an Apostille who wouldn't charge him the fee, but be aware this service can be very expensive!
Last, but certainly not least, allow enough time for the documents to be returned to the US. "Overnight" service does not mean overnight for International Shipments. In my experience it requires 3 days over and 2 days back. In our technological age, documents can be faxed or emailed and printed in the foreign country, then shipped back. That cuts down the time frame significantly. Remember to confirm that if the documents are faxed that the fax machine does not use thermal paper. Thermal paper fades over time. If the fax machine does use thermal paper, ask the receiving party to make a copy to serve as the original to be signed. The copy will not fade.
Hopefully these tips will help you in a current or upcomming transaction and help it close smoothly!
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