Table of Contents
- The Basics: What is an Affidavit?
- 9 Types of Affidavits – Free Template Downloads
- When Do You Need an Affidavit?
- The Consequences of Not Using One
- FAQ
1. The Basics: What is an Affidavit?
An Affidavit is a sworn legal document swearing to the veracity of a statement or fact. They take many shapes and forms, and are used for a variety of purposes when you need to legally attest to a fact or statement. Simply put, when you sign an affidavit, you swear under law the information contained in the document is true.
Affidavits are signed voluntarily under oath, in the presence of witnesses, and notarized, making them legally binding, and opening up the signer to penalty of perjury should they lie. For example, you might need one to attest to your relation to a deceased party when winding up their estate, or you might need to swear to your financial status in divorce proceedings.
Typically, affidavits can be broken down into three main components:
- Commencement: a commencement identifies the party attesting to the statement or fact, also known as the “affiant,” and swears the information contained in the document is true.
- Attestation: a clause at the end of the document affirming the location, parties, and date of signing. This may also be referred to as the “jurat.”
- Signature: both the signature of the author and all witnesses present.
The word “affidavit” originates from Medieval Latin, meaning “he, or she, has declared upon oath.”
Additionally, affidavits will identify the following basic elements:
- Affiant: the party signing the document and swearing the information is true.
- Affirmation: a statement affirming the affiant believes the contents of the affidavit are true.
- Witnesses: disinterested third parties attesting to the affiant’s signing the affidavit.
- Penalty of perjury: a statement declaring under penalty of perjury (the laws of the United States) that the information is true and correct.
- Notary public: the public officer administering and authenticating the oath and affirmation.
- Attachments: any additional documents that support its truthfulness.
As a reference, a general affidavit may also be referred to as:
- Affidavit Letter
- Affidavit Form
- Sworn Affidavit
- Statement Under Oath
- Notarized Statement
- Sworn Statement
2. 9 Types of Affidavits – Free Template Downloads
1. Affidavit of Heirship
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An affidavit of heirship is a legal document identifying the heirs of a deceased party who died intestate, without a valid will. It is commonly used when a family member, spouse, or other heir wants to establish their claim to a deceased party’s real property.
Affidavits of heirship allow family members, spouses, and heirs to bypass an arduous and expensive probate process, by legally attesting to all known information about the deceased’s family relationships and history.
An affidavit of heirship template allows parties, who should rightfully inherit from the deceased, to minimize confusion and prevent property from being improperly distributed by a probate court
2. Affidavit of Service
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An affidavit of service is commonly used when serving “process,” or other important legal documents, on a party to a lawsuit. It attests to the delivery of those documents by a server, including the date, time, and manner the documents were served on the party.
They are crucial for legal actions, especially when an adverse party claims they haven’t received proper notice, or proper documents, from a party. Using one can refute such a claim and verify their timely delivery.
3. Affidavit of Domicile
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An affidavit of domicile is a sworn legal document used to attest to the primary place of residence of a deceased party in order to effectively transfer stock ownership and other securities. Without an affidavit of domicile, a deceased party’s estate may remain open and undistributed, resulting in delayed distribution of other assets to beneficiaries.
Although most states use the terms “affidavit of domicile” and “affidavit of residence” interchangeably, both actually serve two different purposes. An affidavit of residence verifies a person’s legal residence for schools, banks, employers and courts, while an affidavit of domicile verifies a deceased party’s last legal residence in order to speed up the distribution of specific types of personal property, primarily stocks and other securities.
4. Affidavit of Residence
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Affidavits of residence are used to verify someone’s legal address. Imagine you’ve just moved houses, and haven’t yet updated your driver’s license reflecting the new address, or haven’t received any utility bills. Using one is an effective way to legally prove your address when lacking alternative methods of proof.
An affidavit of residence is commonly used when applying for a driver’s license after moving states, or when enrolling your child in school after changing districts. Without this document, you risk your child being denied enrollment in a new school district, benefits from specific healthcare programs, and access to other services.
5. Financial Affidavit
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A financial affidavit is a document providing a snapshot of a party’s financial portfolio and sources of income. A signer affirms the financial information detailed in the document is reflective of their financial affairs, giving a court or other party an accurate look into their finances, and thus allowing them to make specific legal decisions regarding party finances.
Financial affidavits are commonly used in divorce and child support cases. For example, using one allows a court to make just and equitable decisions concerning how much child support should be paid per month, spousal alimony, and other decisions concerning division of assets.
6. Affidavit of Identity
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An affidavit of identity is a legal document swearing someone is who they say they are. With rampant fraud and identity theft, legitimate proof of identity is often needed over someone’s word.
Affidavits of identity are an effective tool for authenticating one’s identity and signature and without one, you risk a transacting party questioning your legitimacy, or having specific transactions and transfers denied. Additionally, they are used as a security measure for victims of identity fraud, allowing victims to identify themselves as a true account holder and thus, rescind and recoup fraudulent charges.
7. Affidavit of Title
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An affidavit of title is a legal document used by a buyer, or seller, of real property affirming a seller has true title to the property. It also guarantees the property isn’t being sold to a third party, has no outstanding liens against it, and the seller isn’t a party to any bankruptcy proceedings.
They are designed to protect buyers from outstanding legal issues and uncertainties surrounding a property. With one, a buyer has tangible evidence of a seller’s legal representations should any future problems arise. Additionally, a seller may use an affidavit of title to provide assurances to a prospective buyer.
8. Affidavit of Death
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An affidavit of death is a sworn legal document used by a third-party with personal knowledge of a person’s death, affirming the person has died. Affidavits of death are usually accompanied by a certified copy of a death certificate, and are an essential when sorting out a deceased person’s estate and other legal affairs.
Without an affidavit of death, courts, businesses, agencies, and other parties, may prohibit you from acting on behalf of a deceased relative or spouse, resulting in an inefficient winding up of a loved one’s estate. Such documents and templates are also important tools for reducing the likelihood of fraud and preventing falsified death records.
9. Gift Affidavit
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An affidavit of gift is a formal way to record the transfer of title of a gift of significant value. It clearly documents a gift giver’s gratuitous intent, distinguishing it from a loan or sale, important for state and federal taxation guidelines.
A gift affidavit is commonly used when gifting a car, or significant amount of money, to another person. By establishing clear voluntarily intent to transfer, it serves as proof a gift giver did not expect compensation for it, and cannot demand future payment or its return. Most notably, a bank may sometimes require one in order to clarify how a buyer is financing a down payment.
Attaching supporting documents verifying your assertion or facts is an effective way to give a complete picture of the facts you are attesting to.
What Are the Differences Between an Affidavit and Sworn Declaration?
Time may be of the essence when executing a sworn statement attesting to certain facts and circumstances, therefore, you should acquaint yourself with the differences between an affidavit and sworn declaration.
Both serve similar purposes, and are generally viewed in a similar light by courts, however, there are several stark contrasts which could make the difference between a timely and effective attestation, and one that is late and inadmissible.
Affidavit | Sworn Declaration |
|---|---|
| Signed and witnessed in front of a public officer, such as a notary public | Signed by just the declarant, and not witnessed or notarized |
| Signed under the penalty of perjury | Signed under the penalty of perjury |
| The party swearing to the facts is referred to as the “affiant” | The party giving the declaration is called the “declarant” |
| Courts and businesses generally favor affidavits over sworn declarations | Most courts generally consider both equivalent, but courts usually favor affidavits |
| Commonly used in court proceedings and legal documents | Usually used in patent registrations, name changes, and evidence testimony |
| Can take several days or weeks to get an affidavit notarized | More expedient due to not needing a notary public |
Also known as the “other statement,” depositions are recorded by a court reporter and used alongside declarations and affidavits to record witness statements.
3. When Do You Need an Affidavit?
Chances are you’ll likely be asked to sign an affidavit at some point in your life. Acquainting yourself with possible scenarios where you might need one will help better protect your legal rights and future. At its simplest, an affidavit is needed when a party wants to swear to the veracity of a statement or set of facts. You will need to use an one when:
- You are a party to a legal proceeding or contract, and are required, or have been asked, to make a statement of fact under oath about first hand knowledge, experience, or observation,
- You want someone to swear to a statement of fact under oath.
Think of an affidavit as an out-of-court written testimony, with your hand firmly placed on the Bible, swearing you are telling “the whole truth, and nothing but the truth.”
Affidavits are commonly used in pretrial interrogatories, which are formal questions exchanged between litigants.
4. The Consequences of Not Using One
Affidavits exist to support and accurately attest to any statements or facts that may help you exercise a right, advance a case, or bring a claim. Without one, you risk presenting an incomplete and unverifiable picture of facts to an adverse party, family member, or court, jeopardizing any right, case, or claim you might might have.
Affidavit Type | Consequences of Not Using One |
|---|---|
| Affidavit of Heirship | |
| Affidavit of Service | |
| Affidavit of Identity | |
| Affidavit of Title | Purchasing property from: |
| Affidavit of Residence | |
| Affidavit of Domicile | |
| Financial Affidavit | |
| Affidavit of Death | |
| Gift Affidavit |
Because affidavits are voluntarily made documents, courts cannot force you or another party to make an affidavit.
The Consequences of Lying in an Affidavit
Not only are there consequences due to not using an affidavit, but using one improperly. When swearing to a statement of facts contained in an affidavit, lying is a serious offense, and could land you in hot “legal” water. Keep in mind, that even an unintentionally swearing to a mistake could have severe repercussions.
- Penalty of perjury: when swearing on an affidavit, you declare under the laws of the United States that the information contained within is true (at least to your knowledge). Perjuring yourself can lead to a plethora of consequences, including community service, fines, or even jail.
- Unreliable evidence: by lying on your affidavit or affidavit template, you risk having statements scrutinized by adverse parties or a court, or even deemed unreliable and inadmissible. False statements of fact could ultimately lead to a drawn out legal process, with opposing parties cross-examining and questioning you to figure out the length to which the perjured affidavit extends.
- Diminished moral character: affidavits are used to swear to the truth of facts, and when it’s discovered you’ve lied, or omitted part of the truth, your character is immediately placed into question. With your now documented unscrupulous behavior, you risk courts, and even friends and family, viewing you in a less favorable light, potentially compromising any settlements, decisions, or other rulings.
- Financial sanctions: in cases where an affidavit attests to financial matters, specifically divorce or child support, courts may impose a wide array of financial sanctions due to your deceitfulness. A court may decide to redistribute assets in a manner not otherwise decided, or may award larger financial amounts to the non-offending party.
When signing an affidavit, make sure you understand the complete scope of the information you are attesting to. Failing to do so could result in perjury, and other severe legal consequences.
5. FAQ
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General Questions
A. Yes. Affidavits are legally binding. Once the document is signed, the affiant may be charged with perjury if the affidavit is found to contain false statements of fact.
A. Yes. Affidavits may be handwritten or typed. However, all affidavits must be notarized, meaning, a notary public or other public official must witness you signing it.
A. All affidavits are required to be signed in front of a notary public or other official authorized by law. The notary public, or other official, attests to the authenticity of the affiant’s person and signature by checking identification, and sealing or stamping the document.
A. Yes. An affidavit may be revoked and amended, but under certain conditions. In order to revoke or amend an affidavit, you first need to identify the authority to which you submitted it, and contact them. All states have different guidelines for revoking or amending an affidavit, so familiarize yourself with your state’s revocation and amendment rules.
Generally, if you’ve made a minor mistake, such as a typo, you won’t have to prepare a new affidavit and may take it to a lawyer or notary public to correct any minor mistakes. If you’ve made a critical error, it’s likely you’ll have to prepare a new affidavit, explaining why you’ve altered it.
A. No. There is no requirement for an affiant when signing an affidavit. As long as an affiant is “of sound mind,” and old enough to understand the significance of the oath and affirmation of facts, they may sign it.
A. If you lie in your affidavit, you have committed perjury, and thus, open yourself up to numerous consequences. Such consequences include fines, community service, or even jail.
