An affidavit of death notifies financial institutions, courts, businesses, and other organizations of someone’s passing. The document helps close accounts, receive benefits, or take ownership of property, real estate, or securities. It is written and signed by someone with first-hand knowledge of the person’s death and accompanied by a certified copy of a death certificate.
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 one 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.
When Is an Affidavit of Death Needed?
After someone passes away, their legal affairs and the estate must be handled. People need an affidavit of death for a variety of circumstances involving the efficient transfer and distribution of property, including:
- To establish the legal basis for transferring the deceased person’s property and assets to their beneficiaries or heirs.
- To close or transfer bank accounts, investment accounts, or other financial assets owned by the deceased person.
- To inform the relevant government agencies and halt the benefits.
- To initiate the insurance claims process.
- To accomplish other tasks wherein the deceased had an interest, debt, or claim.
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.
What to Include
Affidavits of death include the following essential 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 passing.
- 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 the affidavit.
Types of Affidavits of Death
The most common situations for using an affidavit of death involve transferring property from the decedent to their heirs through various means.
When to use: If the deceased property owner held a title as Joint Tenants.
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 essential because the home cannot be transferred without the consent of all title owners.
When to use: If the deceased property owner held a title in a Living Trust.
A married couple is considered co-trustors when they have established a living trust. 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.
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
When to use: If the deceased property owner held title as Community Property with the Right of Survivorship
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).
- If the state operates under community property laws, a couple’s property equally belongs to both.
- If the state is governed by the rights of survivorship, the Affidavit of Death of Spouse implicitly transfers the title of all community property directly to the surviving spouse. Additionally, an Affidavit of the Death of a spouse provides proof of eligibility for surviving spouse retirement benefits from a pension or 401K.
Death of Grantor
When to use: If the deceased property owner filed a beneficiary deed (or transfer on death deed).
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 to use: If the deceased property owner passes away without making a valid will or leaving specific instructions for distributing their assets upon death.
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 legal successor based on state intestacy laws. Several states offer slightly different documents to transfer vehicle titles when someone dies without a will.
How to Write
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
Specify why you’re writing the affidavit. Typically, an affidavit of death is created to secure the transfer or delivery of the decedent’s:
- Real property at the time of their death
- Securities at the time of their death
- Bank accounts at your financial institution
Remember to attach a list of the estate you claim 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 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 its authenticity should there be a dispute down the line.
Affidavit of Death Sample
To start writing your affidavit of death, download one of our free templates below in PDF and Word or use our document builder to create a custom form.
Frequently Asked Questions
Who signs an affidavit of death?
The person who signs an affidavit of death is 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.
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.
How do I know if I am or another person is the appropriate person to execute the affidavit?
It 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.