An Affidavit of Death is a legal document used to swear that a person is dead. Once an Affidavit of Death has been written and signed, it can then be used to inform insurance companies, banks, businesses, or any other organizations that a person has died.
Affidavit of Death forms can only be written and signed by someone who has first-hand knowledge of the person’s death.
1. What is an Affidavit of Death?
An Affidavit of Death is a sworn statement, completed by someone with personal knowledge of another’s death, declaring the person has died. Typically, the affidavit is accompanied by a certified copy of a death certificate. This affidavit may also be referred to by different names, including:
- Affidavit of Death of Joint Tenant;
- Affidavit of Death of Trustee;
- Affidavit of Death of Spouse;
- Affidavit of Death of Grantor;
- Affidavit of Death Intestate;
- Affidavit of Death and Heirship.
2. When an Affidavit of Death is Needed
After someone passes away, their legal affairs and estate must be taken care of. An affidavit of death is the appropriate legal document to legally prove someone has died. People need an affidavit of death for a variety of circumstances involving the efficient transfer and distribution of property, including:
- The authority to close a checking account;
- The ability to pass title to property from the deceased to their heirs; and
- To accomplish other tasks wherein the deceased had
- an interest;
- a debt; or
- a claim
3. The Consequences of Not Having an Affidavit of Death
Without an affidavit of death, many businesses, agencies, people, and courts will not allow you to act on behalf of the deceased. Failing to use an affidavit of death could stop you from:
- Selling property;
- Closing bank accounts;
- Accessing safe deposit boxes;
- Transferring property to rightful heirs;
- Transferring accounts, such as retirement accounts, to a surviving spouse.
An affidavit of death is for everyone’s protection. Requiring one reduces the likelihood of fraud and defrauding a court or business. It also speeds up property transfer and distribution, easing the wind up of legal affairs and one’s estate.
4. The Most Common Situations For Using This Document
By far, the most common situations for using an affidavit of death involve the transfer of property from the decedent to their heirs, through a variety of means.
Most often, couples hold their homes in “joint tenancy.” This means that when one spouse dies, the other spouse becomes the sole owner of the property. An affidavit of death of joint tenant allows the surviving spouse to file notice with the title company and the county property assessor. The title is then changed to only reflect ownership of the surviving spouse. Affidavits of death of joint tenancy are important because the home cannot be transferred without the consent of all title owners.
Many people have living trusts. When a married couple has established a living trust together, they are both considered co-trustors. In the event of the death of one spouse, the property in the trust passes to the surviving trustor, and the surviving trustor becomes the sole owner of the property in the living trust. If there is no co-trustor identified, such as when a single person has a living trust, the property will pass to a successor trustee. The successor trustee is responsible for disbursing the property in the trust to the designated beneficiaries once the property owner dies. An affidavit of death of trustee establishes the death of the trustee and helps transfer property to the rightful beneficiaries.
Death of Spouse
In addition to real property held in joint tenancy, married couples often have other reasons for a death related affidavit. An affidavit of death of spouse allows the surviving spouse to remove the deceased spouse’s name from joint credit cards, bank accounts, money market accounts, etc. This affidavit also permits the transfer of funds from an account solely held by the deceased to a lawful spouse (barring a will or transfer on death instruction leaving the contents of the account to someone else). Some states operate under community property laws. This means that all property owned by a couple equally belongs to both of them. In some community property states, the community property is governed by rights of survivorship. In these states, the affidavit of death of spouse implicitly transfers the title of all community property directly to the surviving spouse. Additionally, an affidavit of death of spouse provides proof of eligibility for surviving spouse retirement benefits from a pension or 401K.
Death of Grantor
Some states allow for “Transfer on Death.” For example, a person may have a checking account or savings account in their own name only. Some state laws allow an account holder to designate someone as the person who receives the money in the account upon their death. This is called a transfer of death provision. In this situation, an affidavit of death of grantor transfers the property to the designated individual.
When someone dies “intestate,” they have passed away without a will. Each state has “intestacy” laws that designate how property will be distributed, based on kinship. In most states, if a single person with no children dies, their property will go to their parents. If both are alive, it will be divided between a single surviving parent and siblings, or to just siblings, if both parents are dead. An affidavit of death intestate permits the lawful transfer of property (such as a motor vehicle) to a rightful heir, who identifies themselves as the lawful successor based on state intestacy laws. Different states offer slightly different documents to accomplish the transfer of vehicle title when someone dies without a will. For example, Arizona has a “non-probate affidavit” for obtaining the title to the vehicle of an Arizona decedent. Iowa, on the other hand, titles their document an “affidavit of death intestate” to transfer a vehicle when there is no will.
Affidavit of Heirship
Similar to an affidavit of death intestate, an affidavit of heirship is used in some states when a person dies without a will. Unlike states which allow a person to self-identify themselves as an heir, some states require a third party to identify potential heirs. An affidavit of heirship is completed by a disinterested third party. The third party must have personal knowledge of the parents, children, spouses, and, in cases where there are no surviving parents, spouse, children, or grandchildren, their extended family.
Other Uses For Affidavits of Death
To a lesser extent, affidavits of death can be used to notify a creditor of a death. The affidavit may also be required in order to collect life insurance proceeds.
5. What Should be Included in an Affidavit of Death?
Affidavits of death include the following basic elements:
- Location: the state and county within which the affidavit is signed;
- Affiant: the full legal name and address of the person signing the affidavit;
- Legal capacity of the affiant: an affirmation the signer is of legal age;
- Decedent: the identity of the decedent, including their full legal name;
- Decedent’s date of death: the date of the decedent’s birth and death;
- Affirmation: an affirmation, certifying under penalty of perjury, the signer believes the contents of the affidavit are true and correct;
- Notary: affidavits of death must be witnessed and signed by a notary public.
In the case of an affidavit of heirship, it should be included that the person signing is a disinterested third party, and in the case of a revocable trust, that the person signing is the successor trustee. Additional information may be included depending on the purpose of the affidavit. An affidavit of death may include information about real estate, including the legal description and tax parcel number, or it may identify personal property, such as a vehicle, or other property, such as bank accounts and account numbers.
Affidavit of Death PDF Sample
This sample affidavit of death is a record of the passing of a fictional decedent, “Vivian Derby”: Sample PDF.
Affidavit of Death FAQs
How do I know if I need an affidavit of death?
If your loved one has died and has the property title in their name, this property will need to be retitled. In most instances, an affidavit of death is required. Whether you or another person is the appropriate person to execute the affidavit depends on a number of circumstances. Are you the sole heir? Do you live in a state that requires an affidavit of heirship executed by a third party? Are you a named trustee? Answering these questions will help you decide whether you or someone else is the person who should execute the affidavit. Additional information may be included depending on the purpose of the affidavit. An affidavit of death may include information about real estate, including the legal description and tax parcel number, or it may identify personal property, such as a vehicle, or other property, such as bank accounts and account numbers.
My estranged spouse is threatening to claim I am dead in order to get my name off our home. Is this legal?
No. Lying about a death in an affidavit of death in order to transfer property is not legal – it’s fraud. There may be both criminal and civil consequences for such an action.
How do I get a certified copy of the death certificate to accompany the affidavit of death?
State laws govern who can obtain a death certificate from the Department of Vital Records. Some states limit who can get a death certificate to “qualified applicants.” Typically, qualified applicants must be directly related by blood, or marriage, to the decedent or have a legal relationship to the deceased, such as a court-ordered guardian or attorney of record. Other states do not limit access. The Center for Disease Control and Prevention maintains individual state and territory information on who to contact in order to obtain vital records.