Affidavit of Death
An affidavit of death is a sworn statement, recorded in the land records, that a named person died, so that an interest already set up to pass outside probate shows on the public record as having passed. Whether your state uses one at all, what it is called, and where it goes are all matters of state law.
Find out where you stand — what state are you in?
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Introduction
Find out which of three groups your state is in before anything else, because it decides whether you have a document to sign at all. Some legislatures wrote a survivorship affidavit into their conveyancing law and expect it recorded, and a few made it compulsory with a penalty for filing late. Others wrote nothing of the kind: the interest moves at the instant of death, a certified death certificate is proof enough, and the recording office has no such affidavit to take. A handful in that second group went further and restructured co-ownership itself, leaving the instrument nothing to refer to. In the third group the filing is permitted but not required. The grouping follows none of the things people expect, not region, not population, not community property. It follows whether that one legislature happened to legislate the step, and whether it later adopted a transfer on death deed act that asks a beneficiary to file something afterwards. Where the instrument exists its job is narrow, and worth stating precisely because most of what is written about it blurs the point. It transfers nothing and decides no inheritance. The interest moved already, by words two people put on a deed years earlier. What is missing afterwards is the paper trail: a stranger reading the public index sees two names and no explanation for why one has stopped signing, and that gap is what stalls a sale or a refinance later. Four things are then set by your own state, and they are why the state pages exist. What the document is called, since the same step is an affidavit of death in one state and an affidavit of survivorship, an affidavit of descent, a notice of death affidavit, an affidavit of identity and survivorship or a termination of interest elsewhere, with a few states printing the whole form inside the statute. Which office receives it, which ranges from a recorder or register of deeds to a separate registrar for registered land, a court clerk, or a single statewide bureau. What must accompany it, because some states require a certified death certificate attached while others require none, and several couple a revenue form to it that runs on its own clock. And whether the joint tenancy, trust and transfer on death cases are one instrument or three. Select your state to see which group it is in and, where the instrument exists, what it is called and where it goes. DocDraft builds your affidavit from your facts, with attorney review available before you record it.
Key Things to Know
- 1
Check first whether your state uses this instrument at all, because many do not. In a large share of states the interest vests at the instant of death and a recorded certified death certificate is treated as proof enough, so there is nothing of this kind to file. A few states have restructured co-ownership so that the instrument has no referent at all.
- 2
Where it does exist, it proves THAT a named person died. It does not transfer anything and it does not decide who inherits. Whoever was named on the deed already owns the interest; what is missing is the entry on the public record that explains why.
- 3
It is not an affidavit of heirship and the two are not interchangeable. Heirship instruments identify the heirs of someone who died with nothing arranged in advance. Several states give their heirship instrument a death sounding name, so judge by what the form asks you to swear to rather than by its title.
- 4
The name varies so widely that the wrong search term returns nothing useful. Affidavit of death, affidavit of survivorship, affidavit of descent, notice of death affidavit, affidavit of identity and survivorship, affidavit of confirmation and termination of interest are all the same step under different labels. Use your own state's term when you ask a recording office or a title company.
- 5
Forms for this step are sold for all fifty states, including states where no statute, court form or official form supports one. A recording office may still accept a sworn statement of facts affecting title, and a title underwriter may ask for one as its own practice, but neither is the same as a statutory instrument. If your state's page says none exists, being asked for one anyway is a question for the title company.
- 6
The thing to establish before drafting is the wording that follows the owners' names on the recorded deed, because that is what decides whether a survivorship right exists at all. Language creating a joint tenancy, an express right of survivorship, a tenancy by the entirety, a life estate with a named remainder, a conveyance to a trustee, or a recorded beneficiary designation each point somewhere different. Two names with none of that may mean there is no survivorship right and this is the wrong document.
- 7
Where the filing is permitted but not required, which is the common case, there is usually no deadline and a death from years ago can still be recorded now. A minority of states attach a genuine clock, and in at least one a beneficiary's interest reverts to the estate if the window closes, so check your state's page rather than assuming there is no urgency.
Key Decisions
Your Role
This is the first dividing line, and it decides whether you need this instrument or a different one. Some states treat the joint tenancy case, the trust case and the transfer on death deed case as three separate instruments with different names and different forms.
Two or more owners held it together with a right of survivorship
The most common case. The survivor already owns it; the affidavit puts the death on the record.
Most Common OptionThe person who died held title as trustee of a trust
Usually a separate form, signed by the successor trustee, who swears to that capacity.
A transfer on death or beneficiary deed named me
What the beneficiary records afterwards varies most here, from nothing at all to two affidavits and a deadline.
Nobody was named in advance to receive it
Then this is likely the wrong instrument. An affidavit of heirship or a probate route usually fits that situation.
The affiant swears to facts rather than to an opinion, so what matters is that you genuinely know the identity of the person, the date of death and which recorded deed is involved. Several statutes permit any person with knowledge of the facts to sign.
I am the surviving co-owner or spouse
The usual affiant, and the person the form is written for.
Most Common OptionI am the successor trustee
Expect to swear to that capacity and to name the trust and its date.
I am the named beneficiary under a transfer on death deed
Common, and the branch most likely to carry a deadline or an extra notice step.
I am a family member handling the paperwork for someone else
Workable in states that let any person with knowledge of the facts swear to them. Check your state's page.
The Property
The affidavit has to point at a specific recorded instrument, and the legal description has to be copied from it exactly. This is the detail that most often sends one of these back from the recording counter.
Yes, I have a copy of the deed
Straightforward. Copy the legal description character for character rather than retyping it.
Most Common OptionI know the property but not the deed details
The recording office's index will have it. Search by the owners' names or the parcel number.
I am not sure how the deed is worded
Worth resolving first, because the wording decides whether there is a survivorship interest at all.
The Death
States split on this. Some require a certified copy physically attached to the affidavit and treat it as incomplete without one. Others require no death certificate at all, because the sworn statement is the evidence the statute asks for.
Yes, I have certified copies
The comfortable position. Order two or three, because the bank, the insurer and the assessor will each want one.
Most Common OptionI have ordered them but not received them
Fine to draft now. Whether you can file before they arrive depends on your state.
I only have a photocopy
Usually not enough where the state requires a certified copy. Order certified copies from vital records.
A death certificate cannot be obtained
A real situation, and a few states provide a specific alternative route for it. Check your state's page.
Affidavit of Death Requirements
The Full Legal Name of the Person Who Died, and Any Name Variant on the Deed
The name exactly as it appears on the death certificate, together with every variant appearing on the recorded deed. A deed reading Robert J. Smith against a death certificate reading Bob Smith is the single most common reason one of these is rejected, so recite both and state that they are the same person.
The Date and Place of Death
The date of death, and the city and state where it occurred. The date is the operative fact: it is the moment the interest moved. A small number of states also ask for the cause of death as an element of the affidavit, which surprises people, so check your state's page before omitting it.
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