An affidavit of death contains a sworn statement of someone’s death. The affidavit of death can be used in conjunction with the death certificate to notify courts, businesses and others that someone’s passed away.
An affidavit of death also referred to as an affidavit of death of the joint tenant, affidavit death of spouse, affidavit death of trustee, affidavit death of intestate or affidavit death of the grantor.
The affidavit of death can be used to verify the death of a person through a sworn statement and signature of a close relative who personally witnessed their death. They are often signed along with the death certificate but may be signed later or a short period after the death occurred.
Components of an Affidavit of Death
It should include basic information about the deceased and details related to their death:
- Name of the deceased person
- Their age at death
- Their date of birth
- Date of their death
- Place of death
- Decedent’s residence
- Location of affidavit execution
- Affiant’s name, signature, and address
- Warranties by the affiant
- Notarization and name and signature of the notary.
Besides these basic details an affidavit of death can include many additional details specific to the death occurrence circumstances. Its contents are also derived by what purpose they are being signed for such as if it is being signed in order to transfer rights to real estate then more information will be covered about the decedent’s assets and properties while if it was related to any joint-accounts the decedent had with their spouse it will cover more of the banking and income details of the decedent.
When is an Affidavit of Death Needed
An affidavit of death can be a precursor for many things after someone dies. Such as, the decedent will have some type of property, any vehicle or other wealth under their name, in order to legally distribute their possessions the state requires a notarized affidavit of death which verifies the occurrence of death legally.
There are a number of situations when an affidavit of death may be required:
- To transfer the sole rights of a joint-tenancy to the surviving partner.
- To transfer wealth to the decedent’s next generation.
- To close any checking accounts of the decedent.
- To inure the decedent’s successors or heirs to any debt or other liabilities.
- Or to manage any other activities that the decedent had a stake in.
What if I don’t obtain an Affidavit of Death?
You or any individual whether close relative, family member or the decedent’s spouse can not make decisions and distribute their wealth and possession on behalf of the decedent unless they have a notarized affidavit of death. If you don’t obtain an affidavit of death then any court or other legal body will not allow you to proceed with the following:
- Selling the assets or property of the deceased.
- Closing their bank accounts.
- Transferring wealth to the heirs.
- Transferring any savings to rightful individuals such as retirement savings or investments.
Most common Purposes of using a death affidavit:
An affidavit of death is used for a variety of reasons but most uses are related to the transfer of ownership rights to the legitimate heirs such as the following:
An affidavit of death will be required when the spouse of the decedent needs to transfer the rights to ownership to themselves as many decisions and transfers related to the property require the agreement of all owners. Therefore, in order to manage or utilize the property in any way such as by selling it or transferring the rights to children the spouse will be required to be the sole owner to make all the decisions legally. An affidavit of death will be required by the title company and the property assessors when transferring ownership rights.
Many individuals prefer establishing a living trust, which becomes the legal custodial (trustee); who can manage and take decisions related to the property and assets in the trust, this individual or firm is known as the Trustee. The trustee then has the responsibility to protect the assets in trust and distribute them fairly to the beneficiaries.
Beneficiaries are the individuals or individual who ultimately benefits from the distributions and gains ownership or control over the assets. The beneficiaries are usually people who have a close relationship with the decedent such as, their children, spouse or parents, etc.
However, to proceed with this process an “Affidavit of Death of Trustee” is needed to legally declare and attest that the death has occurred and acts as a means to transfer ownership to the beneficiaries.
Death of Spouse
Even when a married couple does not have joint-tenancy, many states automatically merge the assets and properties of each spouse together making both the owners of each other’s property. It is also common for married couples to have joint-accounts such as savings accounts, money market accounts or joint credit cards. In such cases, the spouse will be required to transfer all the authority to themselves only and remove their partner’s name from such joint ownerships and to do so banks, assessors, as well as the state laws, require the surviving spouse to submit a notarized affidavit of death.
Other than joint-accounts and credit cards any accounts or credit cards solely owned by the decedent may also be transferred to the surviving partner’s name (if it was mentioned in the decedent’s will or previously instructed by them otherwise.)
Moreover, they are also required when a spouse wants to access the retirement benefits of the decedent such as from their pension or 401K investments.
Death of Grantor
Some individuals prefer having their checking or savings accounts under their sole authority and name during their lifetime. However, some states allow these individuals to designate their transfer of any savings or funds received in the bank accounts to any individual they want after their death. This process of transferring ownership to a designated person upon the decedent’s death is referred to as “Transfer on death” or “Transfer on Death Provision”. The designator is often called the grantor and their affidavit of death will be required by banks or the state in order to proceed with such transfers.
Many people die before they write a will, such instances are called intestacy and Many states have specific intestacy laws that regulate how the decedent’s property and wealth is distributed. In order to acquire the decedent’s property or wealth through these laws the heirs will be required to submit an affidavit of death. The laws mainly hold the surviving spouse and children as the rightful heirs but in case the decedent did not have a spouse or children then the rights to ownership will be transferred to his parents and if both parents have been deceased too then the properties will be transferred to their siblings.
The intestacy laws vary with different states and to obtain rights to ownership one might be required to go through different steps.
What does an affidavit of death comprise of?
An affidavit of death generally comprises the following information:
- State and country where the affidavit is signed;
- The name and location of the affiant;
- A verification that the affiant is not a minor;
- Identity and other personal information of the decedent such as their name, residence, date of birth.
- date of decedent’s death.
- Warranties by the affiant such as attesting that all the information he has provided is true to the best of his knowledge.
- Notarization and witnesses.
When signing an affidavit of heirship, a warranty is also needed by third-party attesting that holds no interest or stake in the transfer of rights and will not be benefited in any way from the transfers.
Do I need an affidavit of death?
You will always need an affidavit of death after your family member or relative passes away in one situation or another. If you wish to make any sort of decision for the property or assets of your deceased loved one or manage the property in any way, you will be required to submit an affidavit of death to proceed with your actions. While it is possible that you may not be the right person who is required to sign the affidavit as maybe another family member might be required to sign it according to the law of your state or maybe the state requires only a disinterested third-party to sign the affidavit.
Furthermore, each affidavit of death may require different types of information and details as well as have different requirements for who acts as the affiant depending on the purpose of the affidavit of death. In case there was no will or the death was an intestate, a third party will be required to sign the affidavit while if there was a will present then any rightful heir may act as the affiant.
Death Certificate VS Affidavit of Death
It is possible that you may not be deemed to have the legal authority to obtain the Death Certificate of your deceased loved one even if you are related by blood because most states have rules that dictate who is eligible to obtain the death certificate and who is not and only the eligible people are considered as “qualified applicants”. Typically, these applicants are usually related by blood, or are the spouse of the decedent. However, this is not true for all states and the laws vary with different states.
Legal Considerations for an Affidavit of Death
State laws do not have any strict rules on what is to be mentioned in the affidavit of death and what can be excluded as the content of an affidavit is mainly derived from the purpose of usage. However, in order for the laws or courts to accept the affidavit of death as legal and valid, it is important to make the details as thorough and accurate as possible, this will help in convincing the courts that the person acting as the affiant has substantial knowledge about the decedent and knew them as well as the heirs personally and that they can accurately warrant their death.