An affidavit is a written form of a sworn statement. This article will explain how and when affidavits are used and other information you need to know about these important legal documents.
The word “affidavit” comes from the Latin phrase “affidare,” which means “he has stated an oath.” Having a signed and notarized affidavit is an integral part of many court cases and legal processes.
Both the person making the statement -- called an affiant -- and the person who is legally authorized to administer an oath -- such as a notary public or an officer from the court or the government – must sign an affidavit.
Understanding What an Affidavit is
The affidavits are used to demonstrate that specific information is accurate in family law, bankruptcy, civil, and criminal cases. In some cases, attorneys use affidavits in lieu of people appearing in court or at another legal proceeding to give their testimony in person.
An affidavit must include the following components:
- Affiant -- the person who swears the information in the document is true.
- Affirmation -- a written statement of events exactly as they happened according to the affiant.
- Witness – an impartial third party who certifies they were present when the affiant signed the affidavit.
- Perjury statement – wording that states that the affiant can be tried in court for false testimony.
- Notary public -- a public official who authenticates the oath, affirms the affiant, and signs the affidavit
- Attachments -- any documents that support the sworn information in the affidavit.
When you sign an affidavit, it is just like taking an oath in a courtroom. You are verifying that the information in the document is true. Just like lying under oath in court is a crime, signing a false affidavit is punishable by the law. Therefore, it is important that you carefully read the document before you sign.
What Other Purposes Are Affidavits Used For?
In many civil action cases and some criminal cases, an affidavit is used when a witness is unable to appear in court or if it might compromise them in some way to appear in court.
For example, an affidavit might detail someone’s detailed version of the events that are pertinent to a case. However, since the affiant cannot be cross-examined in court, these documents may be considered as weak evidence.
Affidavits also are used to prove a variety of legal circumstances, including residency, financial status, or that certain court documents have come to the attention of another individual. These last documents are known as “affidavits of service.”
Affidavit vs Sworn Declaration
What is the difference between an affidavit and a sworn statement? While both of these documents can be used in legal proceedings, there is a key difference between them.
A sworn statement is a signed legal document that provides information that is relevant to a legal proceeding or court case. The statement includes specific wording – called an endorsement paragraph -- that states that the individual making the statement believes the information to be true and recognizes they are under the penalty of perjury.
Sworn statements are frequently submitted as evidence in personal injury cases and other types of legal proceedings. Unlike affidavits, sworn statements are not signed or certified by a notary public or other official.
Both sworn statements and affidavits can be submitted as evidence, but, in many cases, courts prefer affidavits.
What are Affidavits Used For?
The individual signing an affidavit must swear an oath that they have first-hand knowledge of the facts pertaining to a case. Hearsay -- or second-hand -- information is not permissible in an affidavit. Here are some examples of situations when you may be asked to sign an affidavit.
- To confirm that you received legal documents
- To notify a third party (such as a creditor) of the death of someone
- To verify your residency
- To notify someone (such as a former spouse) of a change in circumstances
- To make a formal witness statement
- To verify a name change (often in the case of a marriage or a divorce)
- To confirm another person's identity (often in cases of stolen identities)
- To claim property or assets
- To prove a relationship to a deceased person
- To verify finances to a bank or a judge
- To purchase property
- To distribute property to beneficiaries
Most banks, post offices, and law offices have a notary. Whether the notary charges a fee to witness and sign an affidavit or not often depends on state law. Some banks do not charge their customers notary fees.
Types of Affidavits
Just as there are many purposes for affidavits, there are many different types of these legal documents. Each one serves its own particular purpose. Here are the most common types of affidavits:
A financial affidavit (also called an affidavit of financial disclosure) is used to verify an individual’s current finances, including total income, assets, debts, and expenses. These affidavits often are used in family law cases.
Small estate affidavits
A small estate affidavit is used when a spouse or an unmarried close relative passes away without a will. It helps expedite the asset distribution process of a deceased individual.
Affidavits of death
An affidavit of death notifies the court or some other entity that an individual has passed away. The document verifies the deceased person’s personal information and date of death in order to handle any legal or financial affairs. You may need to attach a copy of the death certificate.
Affidavit of Heirship
Used during probate, an affidavit of heirship confirms that someone was related to a deceased individual. It speeds up property distribution after a family member passes away.
Affidavit of Residence
An affidavit of residence proves that you or someone else lived at a particular address. It is often used when enrolling a child in public school or applying for in-state college tuition rates.
Affidavit of Service
A process server uses an affidavit of service to verify that someone was given relevant documents (such as a summons to appear in court due to a lawsuit). In TV law dramas, this affidavit is accompanied by the words, “You’ve been served.”
Affidavit of Domicile
An affidavit of domicile shows that a deceased person actually lived at their declared primary residence. It is needed in order to transfer ownership of properties like stocks and securities to an executor of an estate.
Affidavit of Title
Used during transactions involving real estate, an affidavit of title proves the seller owns a given property, has no liens on the property, and isn’t currently undergoing bankruptcy.
Affidavit of Identity
Banks and other financial institutions use an affidavit of identity to certify your identity.
A gift affidavit verifies that someone willingly transferred the ownership of a property to another person as a gift.
Personal Information Theft Affidavit
Banks, credit agencies, and creditors often require a personal information theft affidavit to verify that a person's ID was stolen or compromised.
Affidavit of Debt
Common in bankruptcy cases, an affidavit of debt states that an individual owes a specific amount to another person or entity.
When many people hear the word "affidavit," they think only of court cases. But, as you can see, these sworn documents are useful in many different legal circumstances. You may be able to tailor a general affidavit for a unique situation. To make this process easy and convenient, LawDistrict offers a free downloadable Affidavit Form.
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