An affidavit is a legally admissible written statement of facts. Signing an affidavit is akin to making a statement under oath. In fact, knowingly writing or signing a factually incorrect affidavit is grounds for a perjury charge. Affidavits are used to verify information, such as an individual’s name or information about a legal case. The individual who signs an affidavit is known as the affiant.
What Is an Affidavit?
Many different types of affidavits are used in legal proceedings. Each kind of affidavit is used for a specific type of legal process, and some may be used for more than one kind of legal process. For example, an affidavit of death is used during the probate process and may be used to support a wrongful death claim against an allegedly negligent property owner. By providing facts about a legal case, a transaction or an issue handled by the court or a government entity, affidavits fill a role similar to the information gathered during a deposition or the evidence provided in court.
In some cases, an affidavit is used in place of another document when the original document cannot be located. One example is the use of an affidavit of death to let a bank or creditor know an individual has died when that individual’s death certificate cannot be located.
When an individual faces a perjury charge for knowingly signing a false affidavit, she faces steep penalties, including substantial fines and even jail time. An affidavit that is found to contain mistakes or outdated information can be amended by either adding new information to the affidavit or by creating a new one to override the original affidavit. Which of these courses of action is most appropriate depends on the nature of the mistake. Simple errors like typos can be crossed out, corrected in pen and initialed; whereas, more substantial mistakes generally require a new affidavit to be drafted.
Who Issues Affidavits?
Any individual can write his own affidavit. In many cases, lawyers create affidavits for their clients, often using templates. An affidavit must clearly state the following information:
- The affiant’s name.
- The facts to which the affiant is attesting.
- Verification that the affiant genuinely believes, to his best knowledge, that the information on the document is true.
- The date the affiant signed the affidavit.
- The city, county and state where the affidavit was signed.
- All other parties named in the affidavit.
- If applicable, the case number.
- If applicable, the court handling the case.
- All government entities involved in the case.
No matter what kind of affidavit an individual signs, the affidavit must be notarized to be legally valid. A document may be notarized by a notary public, an individual who is certified to witness the signing of key documents, who verifies not only that the signers are who they claim to be, but that they fully understand the gravity of the documents they have signed and that they signed the documents in good faith.
Types of Affidavits for Business and Legal Processes
Many different types of affidavits are used to verify individuals’ identities and actions related to business and court processes. These affidavits include:
- Affidavit of Service.
- Affidavit of Residence.
- Affidavit of Support.
- Financial Affidavit.
An Affidavit of Service is used to verify that the legal documents that needed to be served to a defendant, like divorce papers, have been served to her. An Affidavit of Residence can be used for a variety of reasons, such as verifying to the Internal Revenue Service (IRS) that the affiant lives at a specific address for tax purposes. Individuals who sponsor immigrant loved ones, such as spouses and relatives, must sign an Affidavit of Support to promise that they can and will financially support their loved ones as they work through the naturalization process. A financial affidavit is used to verify facts about an individual’s finances, such as her assets and income during the divorce process.
There are other, more specific types of affidavits that business owners use when necessary, like an Affidavit of Lost Document when an important business document cannot be located, and a Bulk Transfer Affidavit, which a business uses to list all its creditors, debts and creditors’ rights to those debts when it's going through the bankruptcy process.
Affidavits for Estate Planning and Probate
Affidavits are also a critical part of estate planning and probate. This is because for estate planning documents, like a will, to be legally admissible, the signing party’s intent for the assets covered by these documents has to be absolutely clear. Specific types of affidavits used in the estate planning process include:
- Affidavit of Heirship.
- Affidavit of Small Estate.
- Affidavit of Domicile.
An Affidavit of Heirship states that an individual is the rightful heir to a specific asset, such as a home. This may be necessary if an individual dies without a will, as his children or other legal beneficiaries might need to assert to the court that they are the rightful heirs to his assets. An Affidavit of Small Estate is used in a similar manner, but this type of affidavit is typically reserved for the spouses of individuals who have died without wills to expedite the probate process for estates worth less than $150,000. An Affidavit of Domicile is used by the executor or director of a deceased individual’s estate to verify that the individual owned specific stocks and bonds and that these stocks and bonds can be transferred to their specified beneficiaries.
There are other kinds of affidavits that verify personal information about an individual. One of these is an identity theft affidavit. An individual who knows or suspects that her personal information has been compromised in some way may sign an identity theft affidavit to her creditors and credit bureaus to affirm that she did not make certain charges or anticipated charges. When filing an identity theft affidavit, the individual may be required to affirm under oath that her personal information was used without her consent to make specific charges.
Another kind of personal affidavit is a name change affidavit. This type of affidavit attests to exactly what its name implies: that the signer has legally changed her name. Typically, this type of affidavit includes the signer’s original name, her new name and the state where she legally underwent the name change process.
An Affidavit of Residence can be used for a few different purposes. Beyond using one to verify an address for business or legal purposes, it can be used to verify the affiant’s residence to make it possible for her to access certain government services, such as public school for her children or certain welfare benefits.
Non-Specific Kinds of Affidavits
Not all affidavits fall into one neat category. When an individual needs to verify his identity or other specific information for a legal process, he may be asked to sign an affidavit. This could be during a contract negotiation or when making a purchase on behalf of his employer. These affidavits are considered non-specific affidavits, and simply fulfill the purpose of an affidavit without necessarily conforming to a template.
Non-specific affidavits, like all other types of affidavits, must clearly state the facts that are to be verified and be notarized to become legally admissible.