At one point or another, just about everyone is required to sign some type of affidavit in the course of conducting common personal and business affairs. That makes it important to understand what affidavits are and how they are used. Simply put, an affidavit is a sworn statement of fact that can be used in a variety of legal proceedings.
The legal significance of affidavits
Everyone who has watched a television show about lawyers, from Perry Mason to Boston Legal to Bull, has seen courtroom witnesses swear to “tell the truth." A lawyer often says to the witness, “I remind you that you are under oath." If the witness lies on the witness stand, they can be prosecuted for the criminal offense of perjury.
An affidavit is the written version of swearing under oath to tell the truth, just as if you were testifying in a courtroom. The document is signed both by the person making the statement, called an affiant, and by a person who is legally authorized to administer an oath, such as a notary public or certain court and government officers.
Signing an affidavit that contains false information can subject the affiant to criminal penalties. Therefore, before signing, it is very important to read the document carefully to ensure that the information is accurate and truthful. If the affidavit includes any statements that are the opinion or belief of the affiant, the fact that it is opinion or belief needs to be clearly stated.
Common affidavit uses
Affidavits can be useful in many situations. Many government forms include affidavits, such as driver's license applications, vehicle registrations, voter registrations, and concealed weapon permits.
Some of the more common types of affidavits are:
- Court affidavits. Although a court trial usually involves witnesses appearing in court to give oral testimony, there may be situations in a legal proceeding where affidavits are used, such as in support of written motions or when a witness is not available to appear in court.
- Self-proving will affidavit. This is when the signature of a person making a will is notarized. Generally, a will requires at least two witnesses to the maker's signature. Traditionally, when the maker died, it was necessary to have the witnesses testify in court in order to make the will valid. With a self-proving will affidavit, the will is automatically deemed valid without the testimony of the witnesses.
- Affidavit of power of attorney. A power of attorney (POA) is a legal document signed by one person, known as the principal, that gives another person, the agent, the authority to act on the principal's behalf. However, this authority ends if the principal dies or revokes the power of attorney. Before a third party acts in reliance on a POA, the agent may be required to sign an affidavit stating that the power of attorney is currently in effect and that the principal has not died or revoked the POA.
- Financial affidavit. This type of affidavit verifies certain financial information relating to the affiant. Financial affidavits are common in divorce cases, where each party must verify their assets, debts, income, and expenses. Financial affidavits are also commonly used in connection with estate planning and various financial transactions such as loan applications.
- Affidavit of lost document. If a vital legal document is lost or destroyed, it can often be re-established with an affidavit. For example, if you are owed money under a promissory note that has been lost or destroyed, it may be possible to re-establish the note by executing an affidavit of lost promissory note and indemnity agreement. This allows another party to rely on your assurance that the note existed and that you will reimburse the other party in the event of any economic loss due to your assurance.
- Affidavit of identity theft. If you have been the victim of identity theft, you may need to provide an affidavit certifying the theft to creditors, banks, and credit bureaus.
The basic form for an affidavit has four parts:
- 1. A statement that the affiant is swearing under oath to the truthfulness of the information contained in the affidavit
- 2. The information that is being sworn to
- 3. The signature of the affiant
- 4. The attestation of a notary public or other official authorized to administer oaths
A majority of affidavits use forms created by the courts, lawyers, or financial institutions. If you are in a divorce case, many courts have official financial affidavit forms that must be used. If you are involved in a court proceeding or are having a will or power of attorney created by a lawyer, the attorney will prepare the affidavit forms. If you are applying for a loan, the lender will provide any necessary affidavit forms.
There are numerous situations in which an affidavit must be created for a specific purpose. For example, an affidavit might be used to verify the ownership of property that is being sold or to certify marital status in order for a spouse to qualify for some type of marital benefit. Such general affidavits should be tailored to the situation.