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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?

DocDraft provides document preparation, not legal advice.

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. 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. 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. 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. 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. 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. 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. 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

The Property

The Death

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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Does your Affidavit of Death need to be notarized?

Whether a Affidavit of Death needs to be notarized depends on your state. Upload yours, pick your state, and get the current rule with the official source behind it, free and with no account. If yours does need a notary, online notarization is part of your DocDraft plan.

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Frequently Asked Questions

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