An affidavit in Illinois is valid when it is based on the signer’s personal knowledge, sets out specific facts that would be admissible as evidence, attaches any documents the signer relies on, and is signed by the person making it. Notarization is standard practice but not universally required, and Illinois lets you certify most court filings under penalty of perjury as an alternative. Get the Illinois affidavit requirements wrong and the court can strike your document; sign a false one and you are looking at a Class 3 felony punishable by two to five years in prison.
What Has to Be Inside the Affidavit
Illinois Supreme Court Rule 191 sets the standard courts apply most broadly to affidavits in civil matters. The affidavit has to rest on the affiant’s personal knowledge. It has to state specific facts, not conclusions or opinions. And those facts have to be the kind that would be admissible if the affiant took the witness stand at trial. If the person signing could not competently testify to a fact, that fact does not belong in the affidavit.1Supreme Court of Illinois. Illinois Supreme Court Rule 191 – Proceedings Under Sections 2-1005, 2-619 and 2-301(b) of the Code of Civil Procedure
Any documents the affidavit relies on must be attached as sworn or certified copies. And if a single person does not have personal knowledge of every relevant fact, you need separate affidavits from different people to cover the gaps.1Supreme Court of Illinois. Illinois Supreme Court Rule 191 – Proceedings Under Sections 2-1005, 2-619 and 2-301(b) of the Code of Civil Procedure This is where affidavits most often fail. A supervisor cannot swear to what happened on a shift she did not work; a co-owner cannot attest to what the other partner discussed in a meeting he did not attend. Stretch beyond your own knowledge and the affidavit becomes vulnerable to a motion to strike.
Conclusions are the other frequent problem. Writing that a contractor “did shoddy work” is a conclusion. Writing that specific tiles cracked within two weeks of installation, that grout was missing along a described seam, and that water pooled at a named location is fact. The court needs facts it can weigh, not the affiant’s summary judgment on the matter.
Does an Illinois Affidavit Have to Be Notarized
Not always. In Robidoux v. Oliphant, the Illinois Supreme Court held that Rule 191 contains no express notarization requirement. An affidavit complies with the rule as long as it is signed by the person making it or their name appears as the person who took the oath.2Justia. Robidoux v. Oliphant
That is the rule, but notarization is still standard practice, and many courts and opposing lawyers expect to see it. Skipping the notary is a calculated choice that invites a challenge you would otherwise avoid. When you do use one, Illinois caps the fee at $5 per notarial act for a standard non-electronic notarization and $25 for electronic notarization.3Illinois Secretary of State. Illinois Notary Public Handbook Those are ceilings. Banks, credit unions, and many public libraries perform the service free for their customers or patrons. Remote online notarization is available in Illinois, which helps if you need to execute something while out of state.
A notary taking a verification on oath has to confirm the signer’s identity through personal knowledge, a valid government-issued photo ID, or a credible witness the notary knows. Show up without ID and without someone who can vouch for you and the notary will turn you away.
Certifying Under Penalty of Perjury Instead
Illinois offers an alternative that many people never hear about. Under 735 ILCS 5/1-109, whenever a document filed in an Illinois court needs to be verified or sworn, the signer can instead certify it under penalty of perjury. A certified document carries the same legal weight as a notarized one.4Illinois General Assembly. Illinois Code 735 ILCS 5/1-109 – Verification by Certification
The certification has to follow a specific format. The signer states, in substance, that the statements in the document are true and correct, except for matters stated on information and belief, which the signer certifies to believe are true. No notary is involved. No oath is administered. The signer’s written certification and signature carry the whole load.4Illinois General Assembly. Illinois Code 735 ILCS 5/1-109 – Verification by Certification
The exchange is a real one. Anyone who makes a false material statement in a document certified under Section 1-109 is guilty of a Class 3 felony, the same classification as perjury.4Illinois General Assembly. Illinois Code 735 ILCS 5/1-109 – Verification by Certification Skipping the notary does not soften the penalty for lying. One caution: some Supreme Court rules override Section 1-109 by expressly requiring a sworn affidavit, so check the specific rule that governs your filing before you rely on certification alone.
Filing and Serving the Affidavit
Once signed, the affidavit gets filed with the circuit court clerk in the jurisdiction where the case is pending. Filing puts it into the official record. Standalone affidavits filed inside an existing case usually fall under the case’s general filing costs rather than a separate fee.
Illinois Supreme Court Rule 11 requires that documents filed in a case, including affidavits, be served on every other party. If a party has an attorney, service goes to the attorney. When multiple attorneys are involved, each one has to be served.5Illinois Courts. Illinois Supreme Court Rule 11 – Manner of Serving Documents Other Than Process and Complaint Service methods include personal delivery and electronic filing, depending on the court’s local rules.
Deadlines are unforgiving. Rule 191 requires that motions for summary judgment and their supporting affidavits be filed before any deadline the trial court has set for dispositive motions.1Supreme Court of Illinois. Illinois Supreme Court Rule 191 – Proceedings Under Sections 2-1005, 2-619 and 2-301(b) of the Code of Civil Procedure Miss the cutoff and the court can refuse to consider your affidavit, which may cost you a motion you would otherwise have won.
Penalties for a False Affidavit
Lying in an affidavit is perjury under Illinois law. Under 720 ILCS 5/32-2, a person commits perjury by making a false statement under oath or affirmation, knowing it is false, when the statement is material to the issue.6Illinois General Assembly. Illinois Code 720 ILCS 5/32-2 – Perjury Material means the falsehood has to matter to the outcome. An irrelevant lie technically does not qualify, but it will still gut the signer’s credibility on everything else.
Perjury is a Class 3 felony.6Illinois General Assembly. Illinois Code 720 ILCS 5/32-2 – Perjury The base sentencing range for a Class 3 felony is two to five years in prison, with an extended term of five to ten years available in aggravated circumstances, plus possible fines.7Illinois General Assembly. Illinois Code 730 ILCS 5/5-4.5-40 – Class 3 Felony If the affidavit touches a federal matter, such as immigration, bankruptcy, or a federal lawsuit, 18 U.S.C. ยง 1621 adds up to five years in federal prison on top of any state exposure.8Office of the Law Revision Counsel. 18 U.S. Code 1621 – Perjury Generally
What Happens When an Affidavit Falls Short
Even without fraud, a defective affidavit can wreck a case. An affidavit that leans on conclusions, lacks personal knowledge, or fails to attach supporting documents can be struck. In the summary judgment context, striking the affidavit strips away your evidentiary support and can leave the other side’s motion effectively unopposed.
Illinois goes further in one specific setting. Under 735 ILCS 5/2-1005(f), if the court finds that an affidavit was filed in bad faith or solely for delay in summary judgment proceedings, it must order the filing party to pay the other side’s reasonable expenses, including attorney’s fees. The offending party or attorney can also be held in contempt.9Illinois General Assembly. Illinois Code 735 ILCS 5/2-1005 – Summary Judgments The statute uses “shall,” so the sanction is not discretionary once the court makes the bad-faith finding.
Small Estate Affidavits Are Different
If you are looking at an affidavit requirement because a relative died, the rules point to a specific statute. Under 755 ILCS 5/25-1, heirs can transfer a decedent’s personal property using a small estate affidavit when no letters of office have been issued and the personal property passing to any party, excluding motor vehicles registered with the Illinois Secretary of State, does not exceed $100,000 in value.10Illinois General Assembly. Illinois Code 755 ILCS 5/25-1 – Small Estates Vehicles registered with the Secretary of State go through a separate process regardless of value. The content and personal-knowledge principles above still apply; the statute simply adds specific attestations the affidavit must include.
If Your Case Is in Federal Court
Federal court in Illinois works from different rules. Federal Rule of Civil Procedure 56 treats affidavits and unsworn declarations interchangeably for summary judgment. Either is acceptable as long as it is based on personal knowledge, contains admissible facts, and shows the signer is competent to testify to what is stated. Rule 56(h) also authorizes sanctions when an affidavit or declaration is submitted in bad faith or solely for delay.11Legal Information Institute. Rule 56. Summary Judgment The core substance is the same as under Illinois practice, but the procedural details and alternatives differ enough that you need to know which court you are filing in before drafting.