Affidavit of Lost Document
A lost document affidavit is a sworn statement declaring that an important document — title, deed, contract, will, or certificate — has been lost, stolen, or destroyed. Required to replace original documents with government agencies, courts, or institutions.
When to Use a Lost Document Affidavit
Use when an original document has been lost, stolen, or destroyed and you need to replace it with a government agency, court, financial institution, or insurer.
What Makes This Type Different
How a Lost Document Affidavit differs from the standard Affidavit.
- Sworn statement of the document's prior existence and loss
- Indemnification against claims arising from use of the lost document
- Accepted by DMV, title companies, courts, and financial institutions
- May need to be bonded for high-value document replacement
Complete Guide: Affidavit of Lost Document
An affidavit of lost document is a sworn written statement in which the affiant declares that a specific document—a deed, title, contract, certificate, will, financial instrument, or other legal paper—has been lost, destroyed, or is otherwise unavailable, and attests to the document's former existence, its relevant contents or terms, and the circumstances of its loss. This affidavit is used when an original document cannot be located but its contents or former existence must be proven for a legal, administrative, or financial purpose. Accepting an affidavit in place of the original document is an accommodation that recognizes the practical reality that original documents are sometimes lost—and that the legal system must continue to function despite this loss.
Lost document affidavits are commonly required in real estate transactions where a recorded deed is unavailable, in estate proceedings where the original will cannot be found, in title insurance claims where evidence of prior ownership must be established, in financial matters where original promissory notes or stock certificates have been lost, and in administrative proceedings where official certificates—birth certificates, marriage certificates, naturalization papers—cannot be located. Each of these contexts has somewhat different requirements for what the affidavit must establish: real estate contexts may require a diligent search before accepting the affidavit; estate proceedings require specific language about the circumstances of the will's loss; financial instruments require a lost note indemnity bond in addition to the affidavit.
The lost document affidavit typically serves two legal functions simultaneously. First, it establishes the secondary evidence foundation—the legal basis for admitting evidence about the document's contents even though the original cannot be produced. Under the common law "best evidence rule" (codified in Federal Rule of Evidence 1002 and its state equivalents), original documents are generally required to prove their contents, but the rule allows secondary evidence when the original has been lost, destroyed, or is otherwise unavailable. The affidavit establishes the unavailability predicate. Second, it provides substantive evidence about the document's contents—what the affiant recalls or knows about what the document said.
The strength of a lost document affidavit depends on the quality of the affiant's knowledge about the document's former existence and contents. An affidavit by someone who personally signed the document, read it carefully, and can attest to its material terms from personal knowledge is far stronger than one by someone who heard about the document secondhand. Where possible, the affidavit should be supported by secondary evidence confirming the document's existence and contents: copies (even unofficial ones), references in other documents, correspondence about the document, or testimony from other parties who were present when the document was executed. The more corroboration available, the more credible the lost document affidavit.
How to Create a Lost Document Affidavit: Step-by-Step
- 1
Identify the Lost Document and Gather What Is Known About It
Before drafting the affidavit, compile everything known about the lost document: its type and title, the date it was executed, the parties who signed it, its material terms or contents, where it was kept, and when and how it was discovered to be missing. Gather any secondary evidence—copies, photographs, references in other documents, correspondence discussing it. The more information you have about the document, the more complete and credible the affidavit will be.
- 2
Document the Diligent Search for the Original
Most institutions and courts require evidence that a diligent effort was made to locate the original before accepting an affidavit as a substitute. Describe the search effort in the affidavit: what locations were searched, who was contacted, what records were checked, and when the search was conducted. Searching only one location is typically insufficient—a diligent search for an important document involves checking all files, asking all relevant persons, reviewing safety deposit boxes, contacting recording offices, and consulting any custodians who might have a copy.
- 3
Attest to the Document's Contents from Personal Knowledge
Describe the document's material contents based on your personal knowledge: key provisions, parties' names, dates, obligations, and any other terms relevant to the purpose for which the affidavit is being submitted. If you have a copy—even an unsigned draft or a photocopy—attach it as an exhibit and attest that it is a true and accurate copy or faithful representation of the original. Distinguish between what you know from personal review and what you infer or recall from general recollection.
- 4
Address Why the Document Cannot Be Obtained from Another Source
Courts and institutions receiving lost document affidavits want to know that the original truly cannot be recovered from any available source. Explain why copies or replacements are not available: the issuing authority no longer exists, records were destroyed in a fire or flood, the other party to the document cannot be reached, or no recording or registration of the document was made. If certified copies from a government or institutional source are available (e.g., a recorded deed has an office copy), obtain those instead of relying on an affidavit.
- 5
Execute, Notarize, and Submit with Supporting Materials
Sign the affidavit before a notary public after the oath is administered. Attach all available supporting documentation as exhibits. Submit the completed affidavit to the requesting institution along with any required indemnity bond (for lost financial instruments), filing fees, or other required materials. For real property matters, the affidavit may need to be recorded in the county property records to provide constructive notice.
Key Legal Considerations
Best Evidence Rule and Secondary Evidence Foundation
The best evidence rule (Federal Rule of Evidence 1002, with state equivalents) requires production of an original document to prove its contents. However, Rule 1004 provides exceptions when the original is lost or destroyed—provided the proponent did not lose or destroy it in bad faith. An affidavit of lost document establishes this unavailability exception and provides the secondary evidence foundation necessary for the court to consider testimony about the document's contents. Without the proper foundation, evidence about what a lost document said may be excluded as violating the best evidence rule.
Lost Promissory Note Procedures and Indemnity Requirements
Lost original promissory notes present special problems because promissory notes are negotiable instruments—the holder of the original note is presumptively entitled to payment, and paying someone claiming to be entitled without the original note creates risk of double payment if the original surfaces later in another party's hands. Enforcement of a lost note typically requires: an affidavit establishing the note's former existence, its material terms, and the circumstances of its loss; a lost note indemnity agreement (and sometimes a surety bond) protecting the maker against claims by a subsequent holder of the original; and a court order or the maker's voluntary agreement to honor the lost instrument. Many lenders require lost note affidavits and indemnity bonds as a condition of refinancing or paying off loans whose original notes cannot be located.
Lost Will Procedures and Presumption of Revocation
The loss of an original will creates a particularly complex legal situation. In most jurisdictions, if a will was in the testator's possession and cannot be found after death, there is a rebuttable presumption that the testator destroyed it with intent to revoke. To overcome this presumption and probate a lost will, the proponent must establish: the will's due execution (it was validly signed); the will's contents (through copies or witness testimony); and that the will was not revoked. An affidavit of lost will must address all three elements. Some states require the lost will's contents to be established by clear and convincing evidence before it can be admitted to probate.
Lost Deed and Title Insurance Implications
Lost original deeds do not necessarily create title problems because deeds are recorded in the county property records—the recorded copy is the operative public record establishing ownership, and a certified copy from the recorder's office is typically treated as equivalent to the original for all purposes. If the deed was recorded but the original was lost, obtain a certified copy from the recorder's office rather than executing a lost document affidavit. If the deed was never recorded, a lost deed affidavit may be necessary, but it cannot substitute for a properly recorded instrument in establishing title against subsequent purchasers—a quitclaim deed from the grantor may be necessary to re-establish the chain of title.
Common Mistakes to Avoid
Executing a Lost Document Affidavit When Certified Copies Are Available
Before executing a lost document affidavit, exhaust all sources of certified copies or official replacements: county recorder's offices for recorded instruments, vital records offices for birth and marriage certificates, state archives for historical documents, banks for lost financial instruments, and insurance companies for lost policies. An official certified copy is almost always better than an affidavit for establishing the document's existence and contents.
Not Documenting the Diligent Search Effort
Courts and institutions receiving lost document affidavits expect evidence of a genuine effort to find the original before resorting to secondary evidence. An affidavit that simply states "the document cannot be found" without describing where and how the search was conducted is insufficient. List every location searched, every person consulted, and every records source checked. The more thorough the documented search, the more credible the loss claim.
Attesting to Document Contents Without Adequate Personal Knowledge
An affiant who cannot recall the document's contents accurately, or who is relying on hearsay about what the document said, provides a weak foundation for secondary evidence. If your personal knowledge of the document's contents is limited, supplement the affidavit with statements from others who have direct knowledge, attach any available copies or fragments, and clearly identify the limits of your personal knowledge within the affidavit.
Not Attaching Available Copies or Fragments
Even an unsigned draft, a photocopy, a digital scan, or a partial copy of the document provides valuable corroboration. Any copy—however incomplete—should be attached to the affidavit as an exhibit and attested to be a true representation of the original or a portion of it. The presence of a copy shifts the evidentiary picture from pure testimonial evidence to documentary-plus-testimonial evidence, significantly strengthening the affidavit.
Failing to Consider Whether a Replacement Document Can Be Obtained
For many lost documents, a replacement—not just a copy—can be obtained from the issuing authority. Birth and death certificates can be replaced by vital records offices. Lost vehicle titles can be replaced by the DMV. Lost securities can be replaced by the transfer agent. Lost deeds can sometimes be replaced by quitclaim deeds from the grantor. A replacement original is always superior to an affidavit. Exhaust replacement options before resorting to a lost document affidavit.
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Frequently Asked Questions
Common questions about the Lost Document Affidavit.
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