What You Need to Know about Using Affidavits
An “affidavit” is a written statement that is considered made under oath. It is only valid when made voluntarily and without coercion. When you sign an affidavit, you are asserting that the information is true and that you have personal knowledge of the facts contained in the affidavit. By signing, you are also stating that you are competent to testify if called into court about the information provided in the affidavit. Being competent to testify generally means that you are of sound mind and you are over the age of majority in your particular state (usually 18).
Why Would I Need an Affidavit?
Affidavits can be used for many purposes. They are most often filed with the court to show that specific information is true. In some cases, an attorney can use your affidavit so that you do not have to appear in court or at another official legal proceeding. They can save considerable time and money in a variety of legal events.
Affidavits are also automatically 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 that they are valid would be much more difficult.
Affidavits are useful beyond the courtroom as well. Banks, insurance companies, and other entities may require an affidavit as part of their official functions.
The Importance of Being Truthful in an Affidavit
Saying something 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. It is just like lying on the stand in a court proceeding.
“Perjury” is a legal term that essentially means that you have lied under oath. Being truthful to the court is vital, even when you are in communication via an affidavit instead of in person. Many affidavits assert that they are signed under penalty of perjury, but this may not be a required statement.
Notaries: How Is an Affidavit Formalized?
You must sign an affidavit for it to be effective. Usually, the signature must occur 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 your driver’s license, passport, or other ID information 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 paper says is true, but he or she is 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.
Becoming a Notary
Notaries must usually apply with the state to become certified, and they are required to follow certain formalities to ensure that you are who you say you are when signing legal documents, including affidavits.
Every state has its own application process to become a notary. In some states, the process is as simple as filling out a form and paying a fee. In other states, such as California and New York, testing may be required.
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 other states specifically prohibit notaries from charging fees. Notaries use a special stamp to signify that they are certified and their certification has not expired.
Types of Affidavits
There are many different types of affidavits, and they vary significantly by 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 when it is necessary to transfer 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 type of information can also stop potential will disputes before they occur.
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 will or another estate planning tool in place. The affidavit essentially states that you (or another person) are the legal heir of a deceased person.
Using an affidavit of heirship can be a way to get around having to go to court to probate a will. Filing this document with the state Recorder's Office can be a valid way to pass real property from the deceased to his or her heirs. It can also be an adequate means to transfer personal property, such as vehicles.
An affidavit of heirship works best when there is only one legal heir. However, if the remaining family agree that you should receive the personal or real property at issue, then using an affidavit of heirship can be a helpful way to show that you should inherit the property. Keep in mind, however, that it may not be valid if the entire family does not agree that you should receive the property. Each state has slightly different requirements for executing this document, and LegalNature will help walk you through the requirements to create a legally valid file.
Affidavit of Marriage
There are situations where you may need an affidavit of marriage. This document declares that you are legally married to another individual. 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. The document may also be helpful in states that recognize common law marriage; if you are common law married, then you will not have a wedding certificate.
Both individuals must sign and attest that the marriage is valid and legally binding. The form itself provides very simple information about the wedding, including the date that it occurred and the state in which it occurred. Usually, you must sign the affidavit in the presence of a witness and be sure that it is notarized properly, but the requirements vary slightly in each state.
You can also apply to replace your marriage certificate in lieu of creating an affidavit of marriage, but 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 develop an affidavit for virtually anything you need. Additional standard affidavits include the following examples:
- 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.
- 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.
- 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.
- Death – If you need to let financial institutions, the court, or an insurance company know 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.
- 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.
What Is a General Affidavit?
General affidavits are any sworn statement of fact on any subject. They are unlike other types of affidavits because they can be tailored to meet specific needs in any legal situation. Like other affidavits, on the other hand, 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.
Creating an Affidavit
Although affidavits are considered legal documents, anyone can draft one. As long as it is signed, witnessed, and notarized correctly, it will be valid. That means that you do not have to use a lawyer to create an affidavit.
It is important to note, however, that certain affidavits should contain specific information so that they fulfill their purpose and meet legal requirements. That is why using forms is a helpful way to ensure that you have all of the information you need for a particular type of affidavit.
LegalNature provides a variety of affidavit forms that will help you develop the right affidavit for your needs. We also point out the specific formalities that you must use to make the affidavit legally valid. Our subject-specific forms include the information necessary for the particular purpose for which the affidavit is commonly used. You can find them in our legal documents listing.