An affidavit is a legally sworn statement used as evidence in court or other legal proceedings. It is a written declaration made under oath, meaning the person signing it affirms that the information provided is true to the best of their knowledge.
Affidavits play a crucial role in legal cases, contracts, and official filings, helping individuals and businesses present facts without requiring in-person testimony.
Understanding how affidavits work is essential for legal professionals, plaintiffs, and defendants alike. In this guide, we’ll explain what an affidavit is, when it’s used, and what legal requirements must be met for an affidavit to be valid.
What Does an Affidavit Mean in Legal Terms?
In legal terms, an affidavit is a sworn written statement made voluntarily by an individual, known as the affiant or declarant, under oath or affirmation. The statement is made before an official authorized to administer oaths, such as a notary public or court officer.
An affidavit serves as evidence in legal proceedings, allowing a person to present facts without appearing in court. Because it is made under penalty of perjury, false statements in an affidavit can result in legal consequences, including criminal charges.
If the written testimony given by a witness contradicts what has been declared in the affidavit, it can be used to impeach the witness, which can lead to criminal charges, including perjury, if any intentional efforts to obstruct the truth have been found.
Affidavits are commonly used in:
- Court cases (e.g., witness statements, evidence submissions)
- Business and financial transactions (e.g., verifying identity or financial status)
- Real estate and probate matters (e.g., affidavits of title, affidavits of heirship)
- Government and administrative filings (e.g., residency affidavits, name change affidavits)
In short, an affidavit is a legally binding document that ensures the truthfulness of a statement in various legal and official matters.
Who is the Affiant on an Affidavit?
The affiant is the person who makes and signs an affidavit under oath, swearing that the statements within it are true to the best of their knowledge. Because an affidavit is a legally binding document, any false statements made by the affiant can lead to serious legal consequences, including perjury charges. If an affidavit is later found to contain knowingly false information, the affiant may face criminal penalties, such as fines or imprisonment.
Affiants must ensure that every statement in the affidavit is accurate, as it serves as sworn evidence in legal and official matters.
What’s the Purpose of an Affidavit?
The purpose of an affidavit is to serve as a sworn legal statement, allowing an individual to formally declare facts under oath. By signing an affidavit, the affiant confirms that the information provided is true and accurate in the eyes of the law. Affidavits are commonly used as evidence in court cases, legal disputes, and administrative matters.
While the specific content of an affidavit varies depending on its purpose, its structure generally includes:
- A sworn statement made by the affiant.
- All relevant details supporting the claim.
- A notary public’s signature or that of another authorized official.
To be legally valid, an affidavit must explicitly state that the affiant is making the statements under oath and acknowledges that false statements could result in legal consequences, such as perjury charges. Some affidavits also include a declaration that the affiant is of sound mind to ensure credibility.
Are Affidavits Public Record?
If affidavits are part of a court trial and the judge decides the legal documents tied to this case to be made available to the public, then it is a public record. For instance, the United States Courts cites that “Most documents in federal courts – appellate, district, and bankruptcy – are filed electronically, using a system called Case Management/Electronic Case Files (CM/ECF).
The media and public may view most filings found in this system via the Public Access to Court Electronic Records service, better known as PACER.” A fee is charged to access any documents in PACER.
How Much Does an Affidavit Cost?
The cost tied to affidavits can vary from one state to another, from one purpose to another. The cost of an Affidavit can vary greatly, anywhere from a few dollars per page for the filing fee to thousands of dollars to have an attorney that bills per hour help you with the affidavit process.
You can anticipate the following components while estimating the cost- lawyers fee(reviewing the affidavit, consulting, interacting with anyone important and related to the claim), the notary officer or court officer’s fee for signature and stamp, along with any other expenses.
What are the Different Types of Affidavits?
We can categorize the broad categories of affidavits based on the uses or purposes they serve. Some of these are:
Lawsuit Affidavit: These are used in court proceedings as sworn testimony of witnesses. If there is any discrepancy between the affidavit and the verbal statement of the affiant, criminal charges will be imposed.
Self-proving Affidavit: It is a sworn statement attached to the will of an individual. Although it is notarized by an official in front of two or more witnesses, the will is valid in a court of law even without a statement by these witnesses using a Self-proving affidavit.
Power of Attorney Affidavit: Power of attorney is a legal document that gives an individual, the agent, the power to take actions on behalf of another, the principal. This authority for the agent will continue until the principal’s death or they revoke it.
Financial Affidavit: In lawsuits that involve the net worth, assets, or financial background of an individual, a financial affidavit serves as proof of the affiant’s monetary status.
Identity Theft Affidavit: If an individual’s identity has been stolen, an Identity Theft Affidavit helps the affiant to prove their authenticity and share it with important organizations and entities.
What is an Affidavit of Domicile?
When a person passes away, it is vital to establish a legal heir and transfer the assets to them. For this, the affidavit of domicile is essential to ensure there are no open debts or financial liabilities on the deceased. It contains the information on the address of residence of the deceased at the time of death, where they paid taxes and voted. It also includes information such as:
- How long the deceased lived there
- Details of the heir or beneficiaries
- Estate or all the properties owned by the deceased
- Estate account details to facilitate the transactions to the beneficiaries
- Info on any stocks, securities, or other assets, if any.
What is an Affidavit of Heirship?
When a person dies without a will in place, the Affidavit of Heirship is established to identify the real heirs to the deceased’s assets. An Affidavit of Heirship is a sworn statement that describes in detail the family members and heirs of the decedent at the time of death, and how they are related to the decedent.
Further, it contains the deceased person’s name and last address of residence, date and place of death, heir(s), marital and family history, and more. It also ensures a smooth transition of taxes and related property documents to the heirs. When there is no will and no living parents, the siblings or descendants of the deceased inherit the assets.
What is an Affidavit of Indigency?
An affidavit of Indigency, also known as a poverty affidavit, is a written oath that conveys the affiant is unable to pay for fees related to a lawsuit due to poverty. In such cases, the court will pay the lawyer to take up the affiant’s case.
What is an Affidavit In Real Estate?
An affidavit In Real Estate or Affidavit of Title is a legal document outlining all relevant information on a property by the seller. It is designed to protect the buyer from any financial or legal liabilities tied to the property that will automatically get transferred to the buyer upon purchase. It also contains all the seller’s personal details and is a requisite in most states in the US during property transfer or sale.
What is a Small Estate Affidavit?
A Small Estate Affidavit is used to settle the estate or properties and assets of an individual who has passed away. It consists of details such as the value of the probate estate(to show it doesn’t exceed the value set by the state), the time period to ensure the required waiting period has passed since the death, no probate court proceedings have been initiated, and the heir’s right to the estate.
For instance, in Texas, a small estate has an estimated worth of up to $75,000; in Georgia, this value is up to $10,000. In some states, the Small Estate Affidavit can be filed only if the deceased has left no will behind. To get a Small Estate Affidavit, you can approach a bank or any financial institution that handles estate account transactions daily.
Since small estate affidavits are not filed with a probate court, there are no filing fees, making this affordable. The likely charges one can incur would only be to notarize the affidavit, which can cost around $15-30. Yet another benefit of a small estate affidavit is that if the estate is small, the heir needn’t go to court to inherit the assets.
Can I Cash a Check with a Small Estate Affidavit?
In most cases, it might not be possible to cash a check in the deceased’s person’s name. However, the executor can perform this via an estate bank account. Using a Small Estate Affidavit, the heir can get approval from the bank without needing a probate court’s approval and then proceed to access the funds.
Can I Create My Own Affidavit?
Yes, it is possible to create your own affidavit if you don’t want a lawyer’s counsel. However, for the affidavit to be valid, the following conditions must be met:
- All formatting rules of an affidavit must be met. This includes sectioning the document and numbering the paragraphs.
- Be clear, precise, and truthful about all your declarations. Don’t include any factually incorrect information or a lie.
- While drafting out the affidavit, avoid lengthy sentences. Keep it short and simple.
- Include all relevant personal and contact details.
- Proofread to ensure there are no spelling errors in the document. Review the document overall thoroughly.
- Get the document notarized with a seal and signature. This is crucial to legalize the affidavit.
Can I Refuse to Sign an Affidavit?
Affidavits are statements under oath, which become legal once it is notarized. Since this is a voluntary declaration, you can refuse to sign an affidavit since it can have serious legal repercussions. However, an affidavit must be signed and notarized to be valid.
