What Is an Affidavit?

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 What is an Affidavit?

An affidavit is a type of legal document that contains a written sworn statement. Basically, an individual may be asked to sign an affidavit when they need to verify or certify that certain facts they said are true and legally enforceable. These documents are most often used in family law and bankruptcy cases, however, they may be used in many different types of civil and criminal cases as well.

In order to draft a valid affidavit, the following elements must be present:

  • The affidavit must contain a title that states what the affidavit is about and includes your name. If the affidavit is being submitted to a court for a particular matter, then the title must also state the relevant case caption.
  • An affidavit must also contain what is known as a “statement of identity”. This is simply a listing of information about the person making the sworn state (i.e., who the affidavit is for). A statement of identity should include details, such as your name, address, age, occupation, and any other vital information related to the matter.

    • For instance, if you are offering an alibi for the defendant in a criminal case, then you would need to incorporate facts about your relationship to the defendant and possibly, some other details. Alternatively, if you are a law enforcement officer supplying an affidavit to support the complaint, then your statement of identity would include your credentials (e.g., FBI agent, etc.).
  • The most important piece of the affidavit is the declaration or oath statement itself. The oath must include your name and be written in the first person (e.g., “I, your name, certify that the following facts are true to the best of my knowledge.”).

    • Remember, just because you are not holding a bible and swearing an oath in front of a judge, does not make this document any less enforceable. You can be prosecuted if you commit perjury.
  • There should also be a section that states all of the facts that a person is alleging. For example, if you are providing an alibi, then this section would contain that story.
  • Finally, the affidavit will need to be signed in front of a witness and notarized. A notary may qualify as a witness, depending on the type of affidavit and state laws. Also, if the affidavit refers to exhibit documents, those must be notarized and signed as well.

    • When you are ready to get your affidavit notarized, do not forget to bring a form of identification with you, so that the notary can confirm you are who you say you are (e.g., license or passport).

It should be noted, however, that the elements in the above list provide a general overview of what is included in a standard affidavit and thus may not incorporate all of the requirements for a specific jurisdiction. Therefore, if you are drafting your own affidavit without the help of an attorney, be sure to review the guidelines set out in your jurisdiction for creating an affidavit as well as the formats that are accepted under local court rules.

What Are Affidavits Used for in Estates Law?

In an estate law context, affidavits can be used for a number of different legal affairs. One of the most common reasons an affidavit is used in estate law is when a person is attesting that the value of a particular estate qualifies as a “small estate” and thus should not have to pass through probate in order to distribute property to the beneficiaries.

A small estate affidavit will generally need to include the names of any interested parties, a description and the value of the property and/or assets to be transferred, details about the decedent (e.g., their death certificate), and various other important facts.

Some other reasons that a person may use an affidavit in an estate law setting may include:

  • When the appointed executor of the estate needs to verify that they are in fact the actual executor of the estate, that a prior residence actually belonged to the deceased (e.g., an “Affidavit of Domicile”), or when they need to notify an insurance company or financial institution that an individual passed away (e.g., an “Affidavit of Death”).
  • If a person needs to testify to the amount of value of a specific asset and/or property;
  • When a witness or the testator needs to confirm certain information about the contents of a will;
  • If a person needs to inform another party about a move or change of address; and
  • When a person dies intestate (i.e., without a will), their estate will pass to their heirs at law according to most state succession laws. Thus, a person may need to use an “Affidavit of Heirship” to prove that they are the deceased’s true heir.

In other words, any estate matter that involves a transfer of property without having to pass through the probate process or any situation in which a person needs to prove they are rightfully entitled to assets, can benefit from the use of a well-written affidavit.

Can You Prepare Your Own Affidavit?

As demonstrated in great detail in the first section, a person is allowed to create their own affidavit in most situations. However, there may be certain scenarios where a court or the law may not allow it or may provide instructions for how to go about preparing an affidavit. For instance, in some jurisdictions, a person who drafts their own affidavit may need to do so in front of a special witness.

Again, affidavits must comply with very specific requirements under both federal and state laws. These documents should be written in clear and unambiguous language. Also, the statements made in the affidavit will be binding and can create issues if a person does not understand the ramifications or made an error for which they are now liable.

In addition, signing an affidavit is the equivalent of swearing an in-person oath in front of a judge and thus can have serious consequences.

Therefore, it may be an individual’s best interest to hire a professional, such as a local lawyer or affidavit preparer, to assist with the drafting of an affidavit. In general, most lawyers will already be familiar with how to properly draft an affidavit, will know the rules in the person’s area if they hire a local lawyer, and will be able to discuss the consequences of what can happen if an affidavit contains false statements and the person signs-off on it.

Do I Need a Lawyer for Help with an Affidavit?

Although affidavit forms can be found on many court websites, there are some situations where it may be best to consult an attorney before drafting or completing an affidavit. This can happen when a case involves complex legal issues or if a person does not understand the requirements for a particular type of affidavit. Creating an invalid affidavit or including details that are falsified can have serious legal ramifications.

Thus, if you have any questions or need assistance with issues involving an affidavit, then it may be in your best interest to hire a local estates attorney before signing the document. An experienced estates attorney can inform you of your rights under the law and the legal requirements for creating a valid affidavit. Your lawyer can also help you prepare, draft, review, and/or edit an affidavit, as well as can submit one to the proper court on your behalf.

Additionally, if you have committed perjury through the use of an affidavit, your attorney will also be able to provide representation in court.

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