LEGAL DICTIONARY

Affidavit

Knowing how to use an affidavit form can be essential during some legal proceedings. These crucial documents have many practical advantages in bankruptcy, family law, criminal and civil cases.

An affidavit, quite simply, is a written legal document that swears truth to a claim or statement. Like a witness in a court proceeding, this information is given under an oath of truthfulness and is officially recorded.

This article explains when and how affidavits are used and what different types you may encounter. It also details how these documents can be created correctly to be legally valid.

When Must an Affidavit Be Used?

There are many different situations where an affidavit may be practically used. However, some of the most frequent reasons for using this essential legal document are as follows:

  • Divorce: To help settle the assets of each individual spouse
  • Real Estate: To establish cases of property transfer
  • Debt: Clarifying the level of debt and the circumstances that have led to it
  • Court cases: To provide evidence in an ongoing criminal or civil case

Types of Affidavit

Affidavits can be referred to by many different names. However, they all usually comprise of the same key information no matter their use. The commonest types of affidavit include:

  • Court Affidavit: This is used in the case of court witnesses. It can either be used in addition to the spoken testimony given in court, or in its place if the witness cannot attend court for any reason.
  • Affidavit of Power of Attorney: An agent granted Power of Attorney may be required to sign an affidavit stating that they are acting under powers granted by a living principle.
  • Lost document affidavit: This can be used to reestablish a lost or destroyed vital document.
  • Self-proving will affidavit: If you are creating a last will and testament and wish to have it notarized instead of witnessed, a self-proving will affidavit document can ensure your will is fully valid without the usual witnessing signatures.
  • Affidavit of support: These are often used by overseas immigrants applying for visas. These are normally used to provide evidence that the applicant has sufficient financial resources before entering the country.
  • Financial affidavit: This is a sworn statement that confirms information about the assets, debts, income, and expenses of the affiant. It is most commonly used in divorce proceedings.
  • Small estate affidavit: This can be used in the place of a will if a spouse or relative dies without completing their final testament. You will then be able to manage their estate and take on all the responsibilities therein.
  • Affidavit of identity theft: Victims of identity fraud can be provided with an affidavit from a bank or financial institution to provide sworn proof that their identity has been stolen.

Who Are the Key People Involved in Completing an Affidavit?

There are a couple of parties who will be key in creating a valid affidavit. To complete and sign this kind of legal document properly you will need the following people to be present:

  • Affiant: The person making the sworn statement. They must be over 18 years of age and mentally competent to sign an oath of truthfulness.
  • Authorizing individuals: Notary publics, court officials, or other government representatives who may legally administer an oath.

How to Write an Affidavit

Like any authoritative legal instrument, it is important to follow some formal rules when writing a document of this type. There are several parts of an affidavit that must be included. These are as follows:

  1. A statement from the affiant whereby they swear an oath of truthfulness for the information contained within the affidavit
  2. The key information that the affiant is swearing to be true
  3. The affiant’s signature
  4. The formal attestation of an official who may administer oaths (e.g. a notary public)

If you are writing an affidavit for yourself or on behalf of another person, it is important to remember the following writing tips:

  • Write in short sentences
  • Avoid excessive legal jargon
  • Organize your thoughts carefully on paper
  • Keep the document as short as possible
  • Avoid ambiguity
  • Check the document carefully for any spelling or grammatical errors

Do I Need a Lawyer to Create an Affidavit Form?

Normally, a lawyer would be called upon to create an affidavit form for a witness or client. This is not obligatory although it is recommended in certain situations such as court proceedings.

However, for personal and family matters, there are more options such as online document builders which may prove cheaper and easier than hiring a legal professional.

Signing and Formalizing an Affidavit

An affidavit must be signed and notarized in order to be valid. When you have finished writing your statement you will need to bring it before a notary public or another suitable official with authority to recognize sworn statements.

When you sign you will need to bring a form of identification (i.e. a driving license). Also, depending on your situation, you may be required to complete a jurat just as you would in court. However, this is normally written on the final document in place of a spoken version.

On completing these previous steps you will be able to formally sign the document and put it into effect. The presiding official will also need to sign to properly authorize the form.