An affidavit of heirship is used to transfer personal property and/or real property written by a disinterested third party who can testify to the relationship of the surviving spouse(s) and/or heir(s).
What is an Affidavit of Heirship?
An Affidavit of Heirship, otherwise known as an Heirship Affidavit, is a document that identifies the heirs of a deceased person who died without a valid or enforceable will. This document allows a spouse or family member to establish ownership of the person’s real property, such as a home or tract of land.
The document presents all known information about the decedent, including all known family relations such as a spouse, parents, children, siblings, nieces, nephews, etc., to appropriately distribute the person’s property. The decedent’s heirs must agree on how the property should be distributed.
What Should Be Included?
Each state has statutes regarding the format and required contents of an Affidavit of Heirship. The most common elements that you must include in an Affidavit of Heirship are:
- Decedent: the name of the person who has died.
- Heirs: persons who may legally inherit the decedent’s property
- Witnesses: disinterested third parties who are not heirs or estate beneficiaries but must sign the affidavit and swear under oath that the information in the document is truthful and accurate
- Affidavit: a sworn document that verifies facts concerning a specific issue. In this situation, it identifies the heirs of the decedent and other relevant information as required by law.
- Notary: the person in charge of administering oaths and affirmations of the decedent and witnesses. Notaries apply their seal of authentication to the document as proof of valid execution of the affidavit.
- Real Estate and Personal Property: all real and personal property transferred to the heirs
- Debts and Liabilities: the decedent’s unpaid liabilities and debts, if known.
- Attachments: any documents that support the affidavit.
- Proof of Execution: a signature and seal of the notary who affirms the proper execution of the affidavit
When is an Affidavit of Heirship Needed?
Here are some common scenarios in which an Affidavit of Heirship may be used:
When There is No Will: An Affidavit of Heirship is needed when a decedent dies without leaving a valid, enforceable will. This document allows a spouse or family member to establish ownership of the person’s real property, such as a home or tract of land. Without this document, a decedent risks heirs and loved ones going through a lengthy and expensive probate process to distribute their property.
Informal Estate Administration: An Affidavit of Heirship may also be necessary when a decedent’s will expresses their intent to distribute their personal property but fails to state that ownership will transfer to a specified person.
For example, a will might state that the decedent thinks his sister should have his car after he dies because she has to walk to work every day and needs a car. Unfortunately, while the decedent’s intentions are clear, it does not explicitly state that the car title will be transferred to his sister in the event of his death.
→ Related: Understanding what probate is will allow you to make informed decisions regarding property distribution and your heirs.
Transfer of Real Estate: If the decedent held real estate, an affidavit of heirship may be necessary to identify the legitimate heirs and make the title transfer process easier. This record assists in proving ownership and can be required for selling, refinancing, or passing the property on to the heirs.
Insurance Claims: When submitting a claim for life insurance benefits, the insurance provider could ask for an affidavit of heirship to confirm the payout recipients. This affidavit assists in establishing the connection between the deceased and the potential heirs, ensuring that the insurance payments are distributed fairly.
Banking and Financial Matters: An affidavit of heirship may be required to prove the heirs’ right to the deceased person’s bank accounts, investments, or other financial assets. This can make managing the decedent’s finances and money transfers easier.
Consequences of Not Having
Without an Affidavit of Heirship, the surviving spouse or other heirs must use the probate court system to settle an estate. The probate process can be expensive and take months or even years to resolve. While the estate is in probate, the spouse or heir cannot:
- Sell the real property
- Access bank accounts, retirement accounts, or other funds
- Sell automobiles or other vehicles
- Keep, sell, give away, or donate the decedent’s belongings.
- Access safety deposit boxes
- Distribute assets
Spouses cannot settle outstanding bills or claims against the estate because they cannot access the bank accounts. Therefore, these debts become part of the probate court process.
How To Fill Out an Affidavit of Heirship
Step 1 – Fill in the Affiant Information
The affiant is the person who is filling out the affidavit. For the case of this document, the affiant has to be a disinterested third party who can testify to the relationship of the surviving spouse(s) and/or heir(s) for the transfer of personal property and/or real property.
In this section, you must make sure to include your:
- Full name
- Date of birth
- The date of when you first met the decedent
Step 2 – Provide Decedent Information
For the next step, you need to provide information about the person who has died. Include the following:
- Name of the Decedent
- Decent’s date of death
- Place of death – this is where the decedent passed away. Include details such as:
- Zip code
- Place of Legal Residence
- Write down the address of the decedent
Step 3 – Add Marital Information
You should include the marital information of the decedent, providing the following details if possible:
- Whether the decedent was married at the time of their death or if they were ever married.
- Marriage Dates (include the end date, if applicable)
- Spouse Name
If the decedent had multiple marriages, include this information for all spouses.
Step 4 – Fill in Heir Information
Write down any surviving heirs the decedent has and their relationship to them.
Step 5 – Add in the Final Details
This penultimate step involves including the governing law of the affidavit and the date of the document.
The governing law will determine how the affidavit is interpreted during a dispute.
Step 6 – Have the Affidavit Notarized
You must sign the affidavit in front of a notary. Having the affidavit notarized will help verify the authenticity of the affidavit should there be a dispute.
Below is an example of what an Affidavit of Heirship typically looks like. You can use our free templates (Word & PDF) to get started or create a custom affidavit using our document builder.
Frequently Asked Questions
Does an Affidavit of Heirship transfer title?
No, an Affidavit of Heirship does not transfer title. While Affidavits of Heirships can be considered evidence of a title, they are just presumptions of title. As the affidavit can only contain an opinion on matters such as the title, it does not automatically grant ownership of an asset to an heir.
For example, one person may have known the decedent for 30 years, while another may have only known them for 10. Due to this, both of them have different experiences and knowledge of the decedent, leading to conflicting testimonies about the heirship. For this reason, an Affidavit of Heirship cannot be used to transfer titles.
How much does an Affidavit of Heirship cost?
The cost of an Affidavit of Heirship depends on multiple factors. If you would like to use an attorney to help you draft the document and assist you in the subsequent court proceedings, it can easily cost you several thousand dollars.
Alternatively, you can get one of our free templates or use our document builder to help you create the document to your needs. You will still have to pay filing or handling fees to the relevant clerk offices, but it’s significantly cheaper than going through an attorney.
Does an Affidavit of Heirship need notarized?
An Affidavit of Heirship must be notarized before a notary public. The document must also contain a notary seal to be legally valid.