What Is An Affidavit? Here’s How to Write One

In a nutshell, an affidavit is a sworn statement that is documented in writing. Affidavits are usually utilized in court proceedings or in negotiations, most commonly in family law and bankruptcy cases; though they can also be used in civil and criminal cases.

undefined

An affidavit must be notarized, signed in the presence of witnesses, and the affiant must swear that the facts contained in it are true and correct. It is absolutely vital that individuals thoroughly read and understand all of the information contained in the affidavit prior to signing it.

Once the affidavit is witnessed and attested to by a notary public or other official, it holds the force of law and binds the individual to the truthfulness of the information that they have provided.

What Is An Affidavit?
How to Write An Affidavit
Affidavit Types and When To Use Them
Formalizing an Affidavit
Using an Affidavit as Admissible Evidence
Restrictions on Affidavits
Consequences of Signing an Affidavit
When You Might Need an Affidavit

What Is An Affidavit?

An affidavit is a legal document that is very similar to a witness’s sworn testimony in a court of law. Prior to giving testimony, a witness in a trial must swear that what they are about to say is true and correct under penalty of perjury. An affidavit carries the same penalty of perjury, only it is used to attest to things outside of the courtroom.

An affidavit is only valid when made voluntarily and without coercion.

The person making the sworn statement is referred to as the “affiant.” In signing an affidavit, the affiant is asserting that the information is true and that they have personal knowledge of the facts contained in the affidavit. They are also stating that they are competent to testify about the information provided if called into court.

How to Write An Affidavit

Although affidavits are considered legal documents, anyone can draft one.

As long as it is signed, witnessed, and notarized correctly, the affidavit will be valid. This means that you do not need to ask a lawyer to create an affidavit. It is important to note, however, that certain types of affidavits will need to contain specific information in order to fulfill their purpose and meet legal requirements. Nevertheless, the following basic elements should be included in any type of affidavit.

Start with a heading. The heading may be made of a case heading if the affidavit is for an open case, or it may simply say “Affidavit of [your name]” if you do not have an open case. The case heading includes the court where your case is being heard, the case number, and the names of the plaintiffs and defendants. After the case heading or general title, the county and state where you will sign the affidavit will be listed.
The first section should contain your name in a sentence that generally states that you, the affiant, swear that the following account of events is true and correct to the best of your knowledge. For example, “Before me comes [your name], whose residence is [address, including city, county, state and zip code], and hereby swears to the following facts under penalty of perjury.” Depending on who drafts the affidavit, this sentence may vary in wording.
The following paragraphs usually each contain one fact. After each fact is detailed, the affidavit usually contains the words, “Further Affiant Sayeth Naught.” This means that the affiant has said all they have to say on the matter.
Lastly, you will need to include the signature lines and notary section. Keep in mind that by signing the affidavit, you are swearing that the facts in the document are true and correct.

An affidavit is not written in typical paragraphs. Each paragraph should be numbered and usually each contains only one fact. To ensure that the affidavit is easily understood, follow these best practice tips:

Keep legal language out of the affidavit as much as possible.
Keep the affidavit as short as possible.
Make sure your thoughts are organized and in the proper order if you are relating your actions in an event.
Do not use inflammatory language.
Leave any drama out of it; just state the plain and simple facts.
Proofread the affidavit for spelling and grammatical errors.

Keep in mind that the affidavit may speak to your credibility, so following these simple tips will make you look more professional and will not negatively affect your credibility.

Making any statement that is not true in an affidavit is technically a violation of the law and you can be fined or even imprisoned for committing perjury (the crime of being willfully untruthful under oath). Being truthful to the court is vital, whether communicating via an affidavit or in person on the stand. Many affidavits assert that they are signed under penalty of perjury, though this may not be a required statement.

Affidavit Types and When To Use Them

There are many different types of affidavits, varying significantly according to their intended purpose. Lawyers often use them in motions and other court filings to prove that certain information is true. In those situations, the attorney will often design the affidavit to meet their needs at the time. In other circumstances, the affidavit will follow a standard format. Some of the most common standard affidavits are listed below.

Affidavit of Domicile

An affidavit of domicile may be necessary in the context of probating a will or when dealing with certain types of trusts. This affidavit establishes the legal residence of the person who passed, based on where they were living at the time of their death. It will include the individual’s prior address and for how long he or she lived there. Usually, the executor or personal representative of the estate will present this type of document to the court during the probate process. It helps the administration of the estate go much smoother and allows for an easier transfer of assets. It is particularly relevant in the transfer of stocks or securities.

Some insurance companies or banks may also require an affidavit of domicile before they will release assets to a beneficiary or an heir. Having this information can also help to avoid potential will disputes.

Affidavit of Heirship

An affidavit of heirship may also be a necessary document in relation to an estate. These affidavits are used most often when the individual who passed away did not have a valid last will and testament or another estate planning tool in place. This type of affidavit essentially states that a specific person is the legal heir of a deceased person. Filing this document with the state Recorder's Office can be a valid way to pass real property or personal property from the deceased to their heirs and may help avoid the need to go to court to probate a will.

An affidavit of heirship works best when there is only one legal heir. If the remaining family members agree that a certain person should receive the personal or real property at issue, then using an affidavit of heirship can be a helpful way to show this. Keep in mind, however, that it may not be valid if the entire family does not agree on who should receive the property. It is also important to note that each state has slightly different requirements for executing this document.

Affidavit of Marriage

This document declares that two individuals are legally married to one another. Usually, a certificate of marriage would perform the same function, but couples can use an affidavit of marriage if they are unable to locate their marriage certificate. This affidavit may be necessary to apply for a foreign visa, for insurance purposes, or to apply for certain financial accounts. It may also be helpful in states that recognize common law marriage. In a common law marriage, you will not necessarily have a marriage certificate. Both individuals must sign and attest that the marriage is valid and legally binding. The form itself provides very simple information about the marriage, including the date and the state in which it occurred. Usually, you must sign this affidavit in the presence of a witness and be sure that it is notarized properly, but the requirements vary slightly in each state.

While you can apply to replace your marriage certificate, this process can be time-consuming and cumbersome. Most states will also charge a fee to replace this document. If you need proof of your marriage quickly, using an affidavit may be more effective.

Other Common Affidavits

You can create an affidavit for virtually any purpose. Additional standard affidavits include the following examples.

In estate planning:

Small estate – In some states, executors or personal representatives may be required to attest that an estate is smaller than a threshold amount so that it can be distributed under local laws for smaller estates. It often results in a much faster and more efficient means to distribute property.
Death – If you need to notify financial institutions, the court, or an insurance company that a loved one has passed away, you may need to develop an affidavit of death. However, many companies will specifically require you to provide a copy of the death certificate instead of an affidavit.

In other personal affairs:

Residence – An affidavit of residence is often used in family law but may be used in other types of cases. It may also be used to show residence information for employment purposes or so your children can attend school in their district.
Name change – In some situations, it may be necessary to show that you changed your name after a divorce or marriage. An affidavit of name change can be used in lieu of official court documents if they are not available.
Support – These affidavits are used to show that a foreign visa applicant has plenty of financial support if he or she is allowed to enter the country. This is meant to ensure that the applicant will not become a financial burden to the US government.
Financial affidavits – An affidavit that certifies your financial information may be necessary for some family law matters, such as during a divorce or child support hearing. In the divorce context, this affidavit is used to distribute property, assets, and debt obligations properly.
Identity theft affidavit – If your identity has been stolen, you should take extra steps to notify the credit bureaus and your creditors. As part of this notification process, you may need to swear under oath that your identity was actually stolen and provide them with an identity theft affidavit.

While conducting business:

Service – Service of process businesses and attorneys will frequently use affidavits of service. These documents state that a certain individual delivered documents to another person or company, usually legal paperwork. The affidavit will explain who took the documents and the time and location of delivery.
Debt – Creditors will sometimes use an affidavit of debt to lay out a specific amount that another person owes him or her. They are commonly utilized in situations where a company is winding down or when an individual is involved in a bankruptcy. However, if you have documents that lay out the debt (such as a contract), then those might be more valuable than an affidavit. You should also keep in mind that an affidavit of debt will not take the place of a contract.

General Affidavit

General affidavits can be used to document a sworn statement of fact on any subject. These are unique from other types of affidavits because they can be tailored to meet specific needs in any legal situation. However, just like other affidavits, general affidavits are still signed under oath and in the presence of a notary.

Even when an affidavit would technically fall into one of the categories above, it could still be considered a general affidavit.

Affidavit 3.png

Formalizing an Affidavit

As you know, for an affidavit to be valid, it must be signed and notarized. This means that a notary is swearing to the fact that it is your signature on the affidavit, so usually the document must be signed in the presence of a notary. A notary is authorized by the state to verify your signature for many types of formal or legal documents. Generally, a notary will check a valid form of photo identification, such as your driver’s license or passport, to confirm your identity before allowing you to sign the document.

In some states, a notary will perform either an acknowledgment or a jurat.

An acknowledgment means that the person who purported to sign the document actually did sign. In an acknowledgment, the signer is not stating that what the document says is true; they are just affirming that it is their signature that appears on the record. The signer may not need to sign the paper in front of the notary; they can sometimes personally appear in front of the notary and declare that the signature is theirs.
In a jurat, on the other hand, the person who signs the document is affirming that what the document says is true based on his or her personal knowledge. The notary must administer an oath or affirmation to the individual signing the document before it is signed. The document must be signed in the notary's presence.

The notary is generally not permitted to tell you which type of signature is required, so it is up to you to request the correct form.

You can often find a notary for your affidavit at a local law office, bank, or post office. Some notaries may charge a fee for their services, while others are specifically prohibited from charging fees in certain states. Notaries use a special stamp to signify that they are certified and their certification has not expired.

Using an Affidavit as Admissible Evidence

An affidavit is admissible evidence, although some courts may consider it hearsay and require you to testify to the affidavit in order to avoid this distinction. Thus, you should never assume that signing an affidavit will exempt you from testifying in court as a witness. Sometimes courts may have local rules that will state whether an affidavit is considered hearsay or not. Your attorney will let you know if you need an affidavit, have to testify, or if you need both an affidavit and to testify.

Restrictions on Affidavits

No restrictions for age are in place for signing an affidavit. However, you must be of sound mind and you must understand what you are signing and why you are signing it. Keep in mind that an affidavit is signed under oath. Generally, you will not be asked to sign an affidavit unless you are over the age of 18. However, minors may be asked to sign an affidavit in a family court matter. It is important that the minor is of sound mind and an age at which they are able to understand the facts and know that they are signing a document that must be true and correct.

Consequences of Signing an Affidavit

Before you sign an affidavit, keep in mind that there are legal consequences to signing an affidavit with false statements. Since you are signing a document under oath, it is the same as testifying in a court of law. If you provide information that is false or lie on the affidavit, you could be fined for perjury. Penalties could include monetary fines, community service, and even jail time. The punishment and the severity of the punishment varies from state to state.

When You Might Need an Affidavit

While most often used in court settings, affidavits can be used for many other purposes as well. They can save considerable time and money in a variety of legal events. In some cases, an attorney may be able to use an affidavit in lieu of requiring your physical presence in court or another legal proceeding. A straightforward action such as a legal name change will require a signed affidavit from the petitioner to guarantee that the request is not being conducted for illegal purposes or to defraud creditors.

Affidavits can be required in a number of judicial proceedings, particularly in estate planning matters and family law issues. Without these affidavits, other legal instruments may not be considered valid, or proving their validity would be much more difficult. Several types of cases require an affidavit, while in other situations it may be voluntary. Whether you need to verify a marriage, claim assets or property, verify the domicile of a recently deceased person, or make a formal statement as a witness in court hearings, creating an affidavit for any purpose is easy. You can create your general affidavit in just minutes, with plenty of flexibility to fit your needs.