An affidavit of death is a document to notify financial institutions, businesses, courts, and others of someone’s passing. This legal document is used to close accounts, receive benefits, or take ownership of property, real estate, or securities.
What is an Affidavit of Death?
An Affidavit of Death is a sworn legal document that attests that a person is dead. Affidavit of Death forms can only be written and signed by someone who has first-hand knowledge of the person’s death and is typically 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
An Affidavit of Death is often created with a specific purpose, such as informing insurance companies, banks, businesses, or other organizations that a person has died. For example, an Affidavit of Death of Joint Tenant transfers the title of a property held in a joint tenancy. The deceased tenant is then removed from the property title.
When an Affidavit of Death is Needed
After someone passes away, their legal affairs and the estate must be handled. An Affidavit of Death is the appropriate legal document to 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
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 in a court or business. It also speeds up property transfer and distribution, easing the wind up of legal affairs and one’s estate.
If you are completing an Affidavit of Death to transfer a vehicle title, check your state’s specific guidelines for transferring the title, as they may offer a state-specific affidavit transferring ownership online designed to meet the requirements of your state’s DMV.
The Most Common Situations For Using This Document
The most common situations for using an Affidavit of Death involve transferring property from the decedent to their heirs through various 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 a joint tenant allows the surviving spouse to file a notice with the title company and the county property assessor.
The title is then changed only to 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, they are 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 no co-trustor is 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 the trustee establishes the trustee’s death 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 a 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 account’s contents to someone else). Some states operate under community property laws.
This means that all property a couple owns equally belongs to both. In some community property states, the 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 a 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 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 the 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 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 as the lawful successor based on state intestacy laws. Several states offer slightly different documents to transfer vehicle titles 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. On the other hand, Iowa titles its document an “Affidavit of Death intestate” to transfer a vehicle when there is no will.
Affidavit of Heirship
Like an Affidavit of Death intestate, an Affidavit of Heirship is used in some states when a person dies without a will. Unlike states that allow a person to self-identify as an heir, some states require a third party to identify potential heirs. A disinterested third party completes an Affidavit of Heirship.
The third party must have personal knowledge of the parents, children, spouses, and, in cases where there are no surviving parents, spouses, 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 to collect life insurance proceeds. Because affidavits of death may be required for several situations, most agencies and businesses require printing and having several copies notarized simultaneously.
How do I know if I need an Affidavit of Death?
This property must be retitled if your loved one has died and has the property title in their name. In most instances, an Affidavit of Death is required. Whether you or another person is the appropriate person to execute the affidavit depends on several 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. It may include additional information depending on the purpose of the affidavit. For example, an Affidavit of Death may include information about real estate, the legal description, and the tax parcel number. It may also identify personal property, such as a vehicle, bank accounts, and account numbers.
How To Fill In an Affidavit of Death
Step 1 – Fill in Affiant Information
The first step in filling in an Affidavit of Death is to provide your information as the affiant. You should fill in your name and role in the estate. You can be either of the following:
Step 2 – Fill in the Decedent Information
The next step is providing information about the deceased person. You need to be able to provide the following:
- Date of death
- Social Security Number.
- Length of stay at the address
Step 3 – Describe the Purpose of the Affidavit
You must make the reason why you’re writing the Affidavit clear. Typically, an Affidavit of Death is created for the following:
- To secure the transfer or delivery of the Decedent’s real property at the time of their death
- To secure the transfer or delivery of the Decedent’s securities at the time of their death
- to secure the transfer or delivery of the Decedent’s bank accounts at your financial institution
Remember to attach a list of the estate you are claiming and the Certificate of Death as exhibits when filling this section.
Step 4 – Add in the Final Details
The last section consists of filing in the governing law of the Affidavit and the date the document has been created. In the event of a dispute, the court will follow the laws of the governing state to decide.
Step 5 – Notarize the Document
The Affidavit of Death must be signed in front of a notary. Having the affidavit notarized will help verify the authenticity of the affidavit should there be a dispute down the line.
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 that the signer believes the contents of the affidavit are true and correct;
- Notary: A notary public must witness and sign affidavits of death.
In the case of an Affidavit of Heirship, it should mention that the person signing is a disinterested third party. In the case of a revocable trust, the person signing should be the successor trustee.
Affidavit of Death Form Sample
Below is an example of an Affidavit of Death. To start creating your own, download one of our free templates (Word & PDF) or use our document builder to create a custom form.
Affidavit of Death FAQs
Who signs an Affidavit of Death?
The person who signs an Affidavit of Death is known as the affiant and must have some relationship with the decedent. For example, they can be a family relative or a friend who has known the decedent for a long time.
My estranged spouse threatened to claim I was dying to get my name off our home. Is this legal?
No. Lying about a death in an Affidavit of Death 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 with 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 to obtain vital records.