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An Affidavit of Death is used to notify businesses, courts, and other places of someone's 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.

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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