Affidavit

Read this guide for everything you must know about the law definition of an Affidavit in lawsuits- What it means, what are the different types, things to keep in mind while preparing one, and more!

What Does an Affidavit Mean in Legal Terms?

An affidavit, in legal terms, refers to an individual’s sworn, written statement, usually in the presence of a court officer or notary officer. With an affidavit, the individual is under oath and thereby declares that all the information is accurate to the best of their knowledge.

Affidavits are usually used in court proceedings, and both the defense & prosecution prepare these documents for witnesses as a part of the trial.

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 common in dispute lawsuits such as divorce settlements, property disputes, heirship, proof of residency, debt cases, medical negligence or malpractice, and more!

Who is the Affiant on an Affidavit?

The person who is under oath in an affidavit is called an affiant. The statements made should be the truth, and if, at any instance, the statements that the affiant signed as the truth are found to be false, it can invite criminal charges, such as perjury, on the affiant.

What’s the Purpose of an Affidavit?

The purpose of an affidavit is to act as an individual’s sworn oath by making and signing a written statement as the truth in the eyes of the law. It can be used to substantiate one’s claim to a lawsuit and as evidence in court proceedings.

Although the content of an affidavit can vary from one purpose to another, the general structure includes the sworn statement of the individual, all relevant details tied to the claim, and the signature of a notary official.

It is also important to explicitly mention in an affidavit that the statements are made under oath and are true. Some may even be written to include the affiant stating they are “of sound mind.”

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 & related to the claim), the notary officer or court officer’s fee for signature & 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 & last address of residence, date & place of death, heir(s), marital & family history, and more. It also ensures a smooth transition of taxes & 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 & 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 & 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 & 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.