This guide explains all the various facets of affidavit. The contents of the guide are –
- Affidavits Definition
- Functions of Affidavit
- When Should You Use an Affidavit?
- When Should You Not Use an Affidavit?
- Types of Affidavits.
- Do I need a lawyer for drafting an affidavit?
- How much does it Cost to Prepare an affidavit?
- How to Write an Affidavit?
- Common Mistake(s) While Writing an Affidavit
- List of documents required for filing an affidavit.
What is an Affidavit?
Affidavits may be defined as a written, sworn statement of fact voluntarily made by an person under an oath or affirmation administered by a person authorized to do so by law.
The person who makes the affidavit is known as the affiant or deponent and the person who administers it is usually a notary.
Affidavits are often used in court proceedings. The person making the affidavit provides the Court with a written statement of details that he wishes to submit regarding the case at hand.
The person submitting the affidavit can either be a party to the case or be a third party, who is acting as a witness or an expert who is called by the Court to give his or her opinion in any matter in the case.
It is used in court proceedings to provide supporting evidence when the testimony of the person signing the affidavit would not be admissible due to insufficient personal knowledge. Affidavits may be required in matters such as real estate transactions, passport applications, immigration petitions and criminal cases.
A person who swears or affirms the truth of an affidavit, known as an affiant or deponent, can be liable for perjury if they intentionally make false statements. A notary public or justice of the peace would be required to certify that the witness has sworn or affirmed that the contents are true to their knowledge.
Affidavits are typically used during litigation to provide facts and evidence regarding issues in dispute. They can be used in lieu of direct testimony in court by one party, or they can be used by both parties to give their account of events and circumstances around specific issues.
Functions and Purpose of Filing an Affidavit
What is the purpose of an affidavit in an Actual Case?
When Should You Use an Affidavit?
As an affidavits is a legal document that allows a person to declare something of their own knowledge after swearing an oath, it can be used in situations ranging from verifying the death of a person to witnessing certain events or agreements and writing wills.
Here are some cases in which you should use an affidavit –
- When someone is deceased, affidavits are required as proof to close accounts and open estates;
- An affidavit also allows a person to legally state how they came into possession of a property;
- Testifying in court requires an affidavit, which is usually sworn by the witness before the court proceeding begins;
- Declaring your income may require an affidavit;
- Declaring debt;
- Declaring your criminal background;
- Declaring your marital status;
- Proving your citizenship or immigration status;
- Proving ownership of a non-real estate asset;
- Assisting in settling estates;
- Verification in name-change proceedings;
- Verification of residency;
- Disagreement in property ownership, possession as well as disagreement over debt.
- Show the parentage of a child, or guardianship of a minor;
- Affirm a power of attorney;
- Substitute testimony in Court cases;
- To claim legal disability etc.
When Should You Not Use an Affidavit?
Affidavits should not be used to present facts that are readily verifiable (such as birth dates or marriage dates), nor should they contain unnecessary details that have nothing to do with the matter in question (such as opinions about another person).
You should not use affidavits to give evidence that you do not have personal knowledge of. For example, if you are giving evidence about what happened at an accident at which you were not present (for example, if you are the owner of the motor vehicle involved), you cannot swear an affidavit as to what happened at the accident scene.
You would need to find someone who was present at the scene (for example, a witness) who could swear an affidavit about what happened. If your affidavit contains anything that is not true, you could be liable for perjury. So, be careful.
It’s better not to write an affidavit than to write something that might be false.
You cannot use an affidavit as hearsay evidence (that is, evidence based on what someone else has said). Evidence from a witness who was present at the scene will always be better than hearsay evidence from someone who heard it second-hand.
Types of Affidavits
There are innumerable types of affidavits but I am listing out the main ones here –
1. Affidavit of Execution
An affidavit of execution is a document which states that the person signing it was present when another person signed a document, and that the person who signed the other document did so willingly and with full understanding of what he or she was doing.
An affidavit of execution is most commonly used when a deceased person’s will is submitted to probate. The executor of the estate files an affidavit of execution stating that they witnessed the deceased sign the will, thus indicating that it is not forged and meets all the legal requirements for a valid will in that state.
In general, an affidavit of execution must include the following information:
- A statement about whether the affiant saw the document being executed
- The date and place where the affiant witnessed the signature
- Information about who signed the document (including name and relationship to affiant)
- Affirmation that the person signing was not under duress at time of signing. If there was any duress, this should be addressed in an exception section at end of statement.
2. Affidavit of Support
The Affidavit of Support is a contract between a sponsor and a beneficiary (the person seeking sponsorship), which obligates a sponsor to support an immigrant financially until he or she can support him or herself. It is a legally enforceable contract.
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3. Affidavit of Small Estate
An Affidavit of Small Estate is a document used to claim property or assets owned by a recently deceased individual who has left no will, where no probate is required, and the value of the estate falls below some threshold amount (depending on state).
It allows the descendants of the deceased to get the property of the deceased without going through the troubles of a probate.
4. Affidavit of Heirship
A document that states the name and address of the person executing it (the affiant), and the relationship of the affiant to the heirs.
The affidavit includes information about the heirs, such as their names, addresses and ages. It also includes details about the property and its location. The affiant must sign and have notarized the affidavit in order to make it legal.
The document is usually required by county officials in order to release a deed or title to property or land when there are no other obvious heirs.
The affidavit of heirship is a legal document used in probate court during estate proceedings after an individual has died. If there is a will, then this document is not needed because it provides proof as to who will inherit certain items in the deceased’s estate.
If there is no will, then this document is necessary because it demonstrates who will receive any real estate or personal property that was owned by the deceased person at the time he or she died.
5. Affidavit of Death
The affidavit of death form is used by owners or beneficiaries to declare that the named person on the document has passed away. The purpose of an affidavit of death is to show that someone has died so that their assets can be divided among their heirs, or so that their name can be removed from any real estate holdings, such as a bank account or house deeds.
6. Affidavit of Domicile
An Affidavit of Domicile is a notarized document that proves a person’s legal residence. It can be used to transfer assets, such as stocks and bonds, from the assets of the deceased to the heirs. The executor or administrator of the estate provides it when transferring title to real estate.
Affidavits of Domicile are often required by banks and government agencies, such as the Internal Revenue Service.
Most states require that you file an Affidavit of Domicile with your local county clerk within 30 days of moving into a new state. It’s best to file it right away so that there’s no delay in changing your address on your driver’s license, registering to vote and getting your mail forwarded.
7. Affidavit of Service
An Affidavit of Service is provided by the person whom you’ve asked to serve someone with court papers, such as a summons or complaint. The affidavit verifies that service was made on the defendant according to court rules.
If you’ve filed a lawsuit for any reason, you must follow local court rules for notifying the opposing party about it. Usually, this involves having someone deliver the documents personally to them. In such cases, an affidavit of service is needed.
8. Affidavit of Name Change
An affidavit of name change is a legal document that allows a person to have all records and documentation changed from the old name to the new name. This includes changing the name on the birth certificate, driver’s license, social security card and other documents. An affidavit of name change can also be filed with the court when a person wishes to change his or her child’s surname.
9. Affidavit of Truth
This one’s kind-of exceptional and can be used by individuals to declare that they are sovereign individuals who exist beyond the powers of any Government. Here’s a sample Affidavit of Truth so that you can check it out.
It isn’t all that useful in the present times.
10. Financial Affidavit
Financial affidavit is an affidavit about the financial status of a person. A financial affidavit or financial statement is a document that outlines your income, expenses, assets and liabilities. The Financial Affidavit has various purposes in different fields.
It’s main purpose is to show the financial status of a person or a company to different authorities.
In cases of divorce, this information helps the judge determine how to best divide the marital property in a fair manner. It also helps judges determine if one spouse should pay alimony (spousal support) or child support. The court may give each party the opportunity to fill out a financial affidavit at some point during the divorce process.
11. Affidavit of Marriage
An affidavit of marriage is an affidavit used to get marriage license or to prove that you are married. It is a document that lists the parties’ marriage date, and places where they have lived since their marriage.
This affidavit also identifies any children born during the marriage and sets forth facts regarding any property or debts acquired by either spouse since the marriage.
Do I need a lawyer for drafting an affidavit?
There’s a simple answer to this: In the U.S., no, you don’t need a lawyer to draft an affidavit. In other countries like the UK or India, it depends on what you’re doing with the affidavit.
In the U.S., an affidavit is a written statement that is notarized by a notary public and is used as proof of something for legal proceedings (in court or administrative hearings).
They’re often used in situations where there isn’t another document that proves the contents of an affidavit; for example, if someone needs to prove that they have lived at a particular address for a certain period of time, and they lack utility bills or other records that would ordinarily serve as proof of residency, they can sign an affidavit attesting to their residency.
It’s not hard to write up your own affidavit in the U.S., but it has to be notarized by a licensed notary public (or if you’re outside the U.S., by a consular officer at a foreign embassy or consulate).
The notary will watch you sign the affidavit and then will add his or her signature and title, along with a stamp or seal, confirming that you appeared before them and signed the affidavit in their presence.
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How much does it Cost to Prepare an affidavit?
A lawyer can help you prepare an affidavit. If you do it yourself, make sure that you understand the process and the requirements.
How much will it cost?
It depends on where you live and if you hire a lawyer or not. In most states, a lawyer can charge as much as he or she wants to – there is no cap on legal fees. If you decide to hire a lawyer, make sure that you ask about the fee in advance so that there are no surprises.
If you don’t have enough money for a lawyer, here are some organizations that may be able to help.
- LSC: http://www.lsc.gov/
- Legal Aid: http://www.legalaid.org/en/home.aspx?state=18&lang=en-US
- Legal Services Corporation: http://www.lsc.gov/what-we-do/find-legal-help/find-legal-help/legal-aids
People with disabilities:
- Disability Rights Legal Center: https://drlc.org/
How to Write an Affidavit?
It’s actually pretty simple. You just have to follow the format when it comes to writing an affidavit.
The steps to writing an affidavit are in fact pretty simple.
#1. Without any fluff, first you create a title for your affidavit.
The title of your affidavit should simply inform the person reading it about the subject of your sworn testimony. Include your name as well as the topic of the affidavit. If you’re submitting your affidavit to a court, you’ll also need to mention the case caption in this part. The caption of your case can be located on any court records pertaining to your case. It will contain –
1. The name of the court,
2. The county and state where the Court is located,
3. The names of all parties involved, and
4. Your case number.
#2. Then, include a statement of identity.
This allows you to identify yourself. For example, I would say –
My name is Adhip Ray. I am 23 years old, I work as a business consultant, and I currently reside at XYZ Example Street, Example City.
#3. Now, write a statement of truth
This affirms that all the content in your affidavit will be true and none of the content will contain anything other than the truth.
You have to swear that the information which you state in your affidavit is true to the best of your knowledge and understanding.
The bolded portion is key. If you are drafting an affidavit without a lawyer, and you miss this portion – you can be liable for facts that were even outside your knowledge.
#4. Provide all the information that you know of.
This is where you share the facts. To do that, first you need to get your thoughts in order. Prepare an outline and prevent repetition.
Take time to organize your thoughts and if required get down one or more rough drafts in a piece of paper first or share the PDF with someone you know to get their comments.
Common Mistake(s) While Writing an Affidavit
Some of the common mistakes which are made while writing an affidavit include:
The use of words such as ‘I think’, ‘I believe’,’I feel’ etc., should not be used in an affidavit. You must write “I know” or “I state” or “it is submitted” or “it is stated” or “it is submitted” or something similar without using words that are indicative of personal opinion only.
Corrections, alterations and over-writing must not be done on the original affidavit. The corrections, alterations and over-writing should be signed by you in all cases.
The font size, width and pitch should not be changed after printing the document unless absolutely necessary.
While writing an affidavit for immigration purpose, it should be typed in Times New Roman font style with size 12 and pitch 14.
The name of the affiant should appear at the beginning and end of the affidavit, preferably on each page.
Here’s a list of 10 errors you must watch out for when writing an affidavit –
1. Not mentioning the correct name of the individual who is signing or making the affidavit.
2. Not mentioning where and when the affidavit is signed.
3. Not mentioning that it has been sworn in before a judicial officer or notary.
4. Not using the full name of the judicial officer or notary who has administered oath.
5. Forgetting to mention whose behalf he is swearing in the affidavit.
6. Long, boring and confusing language
If you are not a lawyer, forget using complex legal language. It’s better to use simple language so that the judge can understand what you are telling. If the affidavit is too lengthy, it will make it difficult for the judge to read.
7. Inconsistent facts
If there are inconsistencies in your affidavit, your case can be thrown out of court. So if you are writing an affidavit, make sure all the facts are consistent.
8. Writing an affidavit that does not address a specific issue
While writing an affidavit, you should remember that it is written for a specific purpose and should address that purpose only. Otherwise it will be useless in the court of law and will not help your case at all.
9. Not having a conclusion statement
The conclusion statement helps summarize everything stated above in the affidavit (without mentioning them again). You should conclude with a summary statement and sign it before a notary public or other authority who can swear the contents of your affidavit to be true
10. Not knowing the rules of preparing an affidavit
This is why you should always draft your affidavit in accordance with the appropriate format. Here’s a tool that can help you find out the appropriate format for your affidavit, if you happen to live in the US.
11. Not stating the facts in chronological order,
12. Not using present tense,
13. Writing hearsay evidence instead of first-hand information,
14. Using improper language or slang terms,
15. Including irrelevant information, and
16. Using long sentences and paragraphs
List of documents required for filing an affidavit.
You don’t need much documents to file an affidavit. All you may need in case you are filing it or swearing on it in front of a notary is a Government issued photo-identification.
Just be wary that the identification should as a best practice, be a valid proof of your residence as well.
In some special cases of affidavit, such as an affidavit of marriage, it will be wise to include some evidence of the marriage into the affidavit. But, you should always consult with a lawyer before taking any steps in such special cases.
That’s all. Hope you found this helpful. Just note that this article is not legal advice. As such, if you need legal consultations, send us an email and we would be happy to guide you forward.
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