What is an Affidavit?
An Affidavit is a sworn legal document swearing to the veracity of a statement or a fact.
They take many shapes and forms and are used for various purposes when you must legally attest to a fact or statement. When you sign an affidavit, you swear that the information in the document is valid under the law.
Affidavits are signed voluntarily under oath, in the presence of witnesses, and notarized, making them legally binding and opening up the signer to the 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 in the document is authentic.
- 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 essential elements:
- Affiant: the party is signing the document and swearing the information is accurate.
- Affirmation: a statement affirming the affiant believes the affidavit’s contents are accurate.
- Witnesses: disinterested third parties attesting to the affiant’s signing the affidavit.
- The penalty of perjury: a statement declaring under penalty of perjury (the laws of the United States) that the information is accurate 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
- Statement Under Oath
- Notarized Statement
- Sworn Statement
When Do You Need an Affidavit?
You’ll likely be asked to sign an affidavit at some point. 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 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.
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 have.
[table “147” not found /]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 misusing one. When swearing to a statement of facts in an affidavit, lying is a severe offense and could land you in hot “legal” water.
Remember that even an unintentional swearing to a mistake could have severe repercussions.
- The penalty of perjury: when swearing on an affidavit, you declare under the laws of the United States that the information contained within is accurate (at least to your knowledge). Perjuring yourself can lead to many consequences, including community service, fines, or even jail.
- Unreliable evidence: by lying on your affidavit or template, you risk having statements scrutinized by adverse parties or a court or even deemed unreliable and inadmissible. False reports of fact could ultimately lead to a drawn-out legal process, with opposing parties cross-examining and questioning you to determine how long 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 questioned. 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 economic sanctions due to your deceitfulness. A court may decide to redistribute assets in a manner not otherwise determined or may award more significant financial amounts to the non-offending party.
When signing an affidavit, make sure you understand the complete scope of the information you attest to. Failing to do so could result in perjury and other severe legal consequences.
Frequently Asked Questions
Are affidavits legally binding?
Yes, affidavits are legally binding. Once the document is signed, the affiant may be charged with perjury if the affidavit contains false statements of fact.
Can an affidavit be handwritten?
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.
Who verifies the authenticity of an affidavit?
All affidavits must be signed before a notary public or other official authorized by law. The notary public, or another official, attests to the authenticity of the affiant’s person and signature by checking identification and sealing or stamping the document.
Can an affidavit be revoked or amended?
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, you’ll likely have to prepare a new affidavit explaining why you’ve altered it.
Is there an age requirement for signing an affidavit?
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.
What happens if you lie in your affidavit?
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.
9 Types of Affidavits
1. Affidavit of Heirship
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 the property from being improperly distributed by a probate court
2. Affidavit of Service
An affidavit of service is commonly used when serving “process,” or other critical 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 papers were served to the party.
They are crucial for legal actions, especially when an adverse party claims they haven’t received proper notice, or valuable documents, from a party.
Using one can refute such a claim and verify their timely delivery.
3. Affidavit of Domicile
An affidavit of domicile is a sworn legal document used to attest to the primary place of residence of a deceased party to transfer stock ownership and other securities effectively.
Without an affidavit of domicile, a deceased party’s estate may remain open and undistributed, resulting in the delayed distribution of other assets to beneficiaries.
Although most states use the terms “affidavit of domicile” and “affidavit of residence” interchangeably, both serve two different purposes.
An affidavit of residence verifies a person’s legal place for schools, banks, employers, and courts.
In contrast, an affidavit of domicile verifies a deceased party’s last legal residence to speed up the distribution of specific types of personal property, primarily stocks, and other securities.
4. Affidavit of Residence
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 received any utility bills.
Using one is an effective way to prove your address when lacking alternative methods of proof legally.
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
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 reflects 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 findings concerning the division of assets.
6. Affidavit of Identity
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.
Without one, you risk a transacting party questioning your legitimacy or denying specific transactions and transfers.
Additionally, they are used as a security measure for identity fraud victims, allowing them to identify themselves as a valid account holder and, thus, rescind and recoup fraudulent charges.
7. Affidavit of Title
An affidavit of title is a legal document used by a buyer, or seller, of real property affirming a seller, has proper identification of 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 future problems arise.
Additionally, a seller may use an affidavit of title to provide assurances to a prospective buyer.
8. Affidavit of Death
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 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 essential tools for reducing the likelihood of fraud and preventing falsified death records.
9. Gift Affidavit
An affidavit of gift is a formal way to record the transfer of title of a grant of significant value.
It documents a gift giver’s gratuitous intent, distinguishing it from a loan or sale, which is essential for state and federal taxation guidelines.
A gift affidavit is commonly used when gifting a car, or a significant amount of money, to another person.
Establishing clear voluntary intent to transfer proves that 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 to clarify how a buyer finances a down payment.
Attaching supporting documents verifying your assertion or facts is an effective way to give a complete picture of the points you are attesting to.
What Are the Differences Between an Affidavit and a Sworn Declaration?
Time may be of the essence when executing a sworn statement attesting to particular facts and circumstances. Therefore, you should acquaint yourself with the differences between an affidavit and a sworn declaration.
Both serve similar purposes and are generally viewed in a similar light by courts. However, several stark contrasts could distinguish between a timely and effective attestation and a late and inadmissible one.
[table “146” not found /]Also known as the “other statement,” depositions are recorded by a court reporter and used alongside declarations and affidavits to record witness statements.
