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Affidavit of Death Form

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An Affidavit of Death is a document that acts as a written solemn oath that states a death occurred. It does not take the place of a certified death certificate. However, some businesses may accept the affidavit in lieu of a certified death certificate to close out accounts.

Affidavit of Death

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What is an Affidavit of Death?

An Affidavit of Death is used to notify businesses, courts, and other places of someone's death. This legal document is a sworn statement that legally states someone has passed away. This form is typically used in conjunction with a certified death certificate.

This death document may be needed for insurance companies or companies that the deceased owed a debt to. This death form can allow a family member or beneficiary to receive their benefits sooner, take ownership of inherited property, or close the deceased's accounts.

An Affidavit of Death is usually easy to fill out and sign. You will need the name of the deceased party, their time and location of death and your affirmation that these facts are true.

Other Names for an Affidavit of Death

An Affidavit of Death may also be referred to by one of the following names:

  • Affidavit of Death of Joint Tenant
  • Affidavit of Death of Trustee
  • Affidavit of Death of Spouse
  • Affidavit of Death of Grantor
  • Affidavit of Death Intestate
  • Affidavit of Death and Heirship

When Do You Need an Affidavit of Death?

When someone dies, their estate must be disposed of. An Affidavit of Death is the document typically used to prove that someone has died for the purpose of winding up their affairs, as well as, transferring and distributing their estate, including:

  • Closing the decedent's checking accounts;
  • Passing property from the decedent's estate to his or her heirs; and
  • Wrapping up other business involving an interest, debt, or claim the decedent acquired before his or her death

Common Situations When an Affidavit of Death Is Needed

An Affidavit of Death is most commonly used in situations involving the transfer of property from the decedent’s estate to his or her beneficiaries in a variety of ways, including:

  • Joint Tenancy - An Affidavit of Death allows a surviving joint tenant to notify the title company and/or state of their husband's or wife's death and that title to property that the couple held in joint tenancy should be changed to reflect that the surviving spouse is now the sole owner of that property.
  • Trustee - Couples often hold property in a living trust as co-trustors. If either spouse dies, the property in the trust will pass to the surviving trustor. An Affidavit of Death allows a surviving spouse to establish that their husband or wife has died and they are now the sole owner of any property that the couple held as co-trustors.
  • Death of a Spouse - In addition to facilitating the transfer of real property to a surviving spouse after the death of their partner, an Affidavit of Death is often useful to a surviving spouse for a variety of other situations, including:
    • Removing their deceased spouse’s name from joint credit cards, bank accounts, investment accounts, etc.
    • Transferring funds from accounts that were held solely by their deceased spouse (in the absence of a will or Transfer on Death (T.O.D) designation).
    • Transferring title of community property directly to the surviving spouse in a community property state.
    • Providing proof of eligibility to receive retirement benefits from a pension or 401K owned by their deceased spouse.
  • Death of a Grantor - An Affidavit of Death may be required for the beneficiary of a T.O.D designation to receive the funds from the deceased grantor's, checking account, savings account, etc.
  • Death Intestate - When a person dies without a will, the state’s intestacy laws will dictate how their estate will be distributed to their heirs. An Affidavit of Death Intestate allows a person to identify themselves as an heir to the decedent’s estate and lawfully inherit property from the decedent, in accordance with the state’s intestacy laws.
  • Affidavit of Heirship - Much like an Affidavit of Death Intestate will allow a person to identify themselves as an heir when the decedent died intestate, an Affidavit of Heirship may be filed by a neutral third-party to identify someone as an heir to the decedent’s estate and establish that person’s claim to the decedent's property. This neutral third-party will need to have had intimate knowledge of the decedent, their family, and/or their loved ones.
  • Notice to Creditors - Affidavits of Death may be used to notify the deceased person's creditors that they have died.
  • Insurance Policies - A person may be required to present an Affidavit of Death in order to collect life insurance policy proceeds.

Many institutions that require and Affidavit of Death will also require a certificate of death.  A certificate of death is usually available from the office of your county recorder or county clerk.

Components of an Affidavit of Death

An Affidavit of Death should include the following basic information:

  • The Location where the affidavit was signed
  • The name and address of the person who signed the affidavit (the Affiant)
  • An acknowledgment the Affiant is of legal age
  • The name of the decedent
  • The date of the decedent’s birth and death
  • A sworn statement that the contents of the affidavit are true and correct to the best of the Affiant's knowledge
  • Verification that the document has been notarized.

An Affidavit of death can also incorporate additional information depending on the purpose for which the affidavit will be used, for example, details pertaining to real estate, personal property, vehicles, bank accounts, and other assets owned by the decedent.

How to Create an Affidavit of Death

This Affidavit must be filled out by someone, referred to as the Affiant, who must attest under oath that the decedent has died and that they have a lawful claim to a part of the decedent's estate. This Affiant must include information regarding the decedent’s identity, where they died, his or her social security number, etc.

You can look at a sample affidavit online or work with a probate lawyer to ensure that your affidavit of death contains all the important information.

The Affiant must also supply the date upon which the decedent died and an attached copy of the decedent's death certificate. Lastly, the Affiant may provide information regarding the decedent's estate, including the value and description of any assets that they are claiming.

Once the Affidavit of Death is completed, the Affiant must sign it before a notary public. Once this is done, the Affiant can use the document with the courts, banks, and other institutions with which the decedent had a financial interest, debts, or a claim.

Legal Considerations

There are really no laws and regulations outlining exactly what must be included in an Affidavit of Death. There are, however, certain widely recognized strategies for drafting these documents, such as ensuring that the information provided within is persuasive enough to convince anyone who reads it that the Affiant possesses sufficient and reliable information regarding the decedent's death.

Issues involving inheritance and claims to a deceased person's estate are are subject to state probate law. Therefore, before making a claim to someone's estate, the Affiant ought to be certain that the estate has already been properly probated.

Consequences of Not Having an Affidavit of Death

Without an Affidavit of Death, you may not be allowed to act on the decedent's behalf in certain situations, including but not limited to:

  • Selling property owned by the decedent
  • Closing bank accounts held in the decedent's name
  • Transferring the decedent's estate to its rightful heirs
  • Transferring the proceeds of the decedent's saving accounts, checking accounts, retirement accounts, etc. to his or her surviving spouse

An Affidavit of Death protects everyone involved by reducing the possibility of fraud. In addition, it expedites the transfer and distribution of a person’s estate and the winding up of their affairs after they have died.

External Resources

https://www.sfassessor.org/forms-notices/forms

http://www.ccr.saccounty.net/DocumentRecording/Pages/AffidavitDeathForms.aspx

Download a PDF or Word Template

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Sample Affidavit of Death

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Sample Affidavit of Death

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