An affidavit of heirship is a document that names a deceased person’s heirs and their relationship to the decedent. This affidavit is written by a disinterested third party who can testify to the relationship of the surviving spouse(s) and/or heir(s) for the purpose of transfer of personal property and/or real property.
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.
In some states, the Affidavit of Heirship can also establish ownership of personal property, such as bank accounts and automobiles. It allows family members to avoid the expensive and time-consuming process of settling the decedent’s estate in probate court.
The document presents all known information about the decedent, including all known family relations such as spouse, parents, children, siblings, nieces, nephews, etc., to distribute the person’s property appropriately. The decedent’s heirs must agree on how the property should be distributed.
The affidavit must be signed by a disinterested third party, most commonly, a witness who knows the decedent and is not an heir to the estate. The document is then recorded with the court and in the deed record of the county where the real estate is located.
Most states limit using an Affidavit of Heirship to transferring ownership of real property to an heir. However, some states allow the use of this affidavit to distribute personal property amongst heirs, but only when everyone with a claim on the estate agrees on the distribution.
When an Affidavit of Heirship is Needed
An Affidavit of Heirship is needed when a decedent dies without leaving a valid, enforceable will. Without an Affidavit of Heirship, a decedent risks heirs and loved ones going through a lengthy and expensive probate process to distribute their property.
Keep in mind that you can only use this document if all legitimate heirs of the decedent agree on the distribution of the property. Otherwise, they must take the issue to the probate court. An Affidavit of Heirship may also be necessary when a decedent’s will expresses their intent to distribute their real 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 specifically state that the car title will be transferred to his sister in the event of his death.
An Affidavit of Heirship can address such intent in greater detail, minimize confusion, and prevent the property distribution from being determined by a probate court. Every state has rules about the distribution of real and personal property should a person die without leaving a valid will.
These rules can be used to structure an Affidavit of Heirship and improve an heir’s likelihood of success in receiving the property they were meant to receive.
Understanding what probate is will allow you to make informed decisions regarding property distribution and your heirs.
When is an Affidavit of Heirship Commonly Used?
An Affidavit of Heirship is most commonly used when a surviving spouse is not on a real estate deed. A real estate deed is used to establish ownership of real property, so the spouse can use or sell it. This process is also used to establish ownership of a car or other vehicle for the same reasons. Additionally, in states that allow the use of an Affidavit of Heirship to distribute personal property, the document is commonly used to gain access to checking or savings accounts that were owned solely by the decedent.
An Affidavit of Heirship is an effective tool to use when there are few heirs and distribution is consistent with state intestate laws.
Consequences of Not Having an Affidavit of Heirship
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 otherwise donate the decedent’s personal belongings
- Access safety deposit boxes
- Distribute assets
Spouses also cannot settle outstanding bills, or claims against the estate, because they do not have access to 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 purpose of 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:
- 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 in the event of 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.
What Should Be Included in an Affidavit of Heirship?
An Affidavit of Heirship will identify the following terms:
- Decedent: the person who has died.
- Intestate: when someone dies without leaving a valid will or other legal document that directs distribution of assets after death.
- Decedent’s Estate: the real and personal property that the person owned at the time of his or her death.
- Real Property: all real estate owned by the decedent, including tracts of land as well as all buildings and other fixed features on the property. This includes houses, barns, outbuildings, business offices, and other developments.
- Personal Property: property that is not connected to the land, such as cars, furniture, bank accounts, clothing, and more.
- Heirs: the person or persons who may legally inherit the decedent’s property.
- 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.
- Witnesses: disinterested third parties who are not heirs or beneficiaries of the estate. Witnesses are required to sign the affidavit and swear under oath that the information contained in the document is truthful and accurate to the best of their knowledge.
- Notary: the person in charge of administering oaths and affirmations of the decedent and witnesses. Notaries apply their personal seal of authentication to the document as proof of valid execution of the affidavit.
Each state has its own statutes regarding the format and required contents of an Affidavit of Heirship. For example, an Affidavit of Heirship in Texas must be submitted on the statutory form provided by the state’s probate code. Some states require one or two witnesses, preparation statements, and a return mailing address. The most common elements that you must include in an Affidavit of Heirship are:
- Party Information: This includes the name or names of the witnesses, who swear the facts in the document are true. Party information also includes the name of the decedent and their last address, date of birth, and date of death.
- Heirs: All heirs must also be listed, including their relationship to the decedent, i.e., spouse, child, parent, and the dates when the parties knew each other. Most states only accept spouses, registered domestic partners, and blood relatives as heirs.
- Real Estate and Personal Property: Identify all real and personal property that is being transferred to the heirs. Include a complete legal description of the property, which you can find on the deed and other records. Be as specific as possible when identifying personal property. For example, include a complete description of an automobile, including the make, model, license plate number, and VIN. Use account numbers to identify bank accounts, stocks, 401(k)s, and other assets, as well as the bank or financial institute that manages the accounts.
- Debts and Liabilities: If known, list all of the decedent’s unpaid liabilities and debts.
- Attachments: Attach any documents that support the affidavit.
- Proof of Execution: A signature and seal of the notary who affirms the proper execution of the affidavit.
Once the affidavit is completed, it needs to be filed with the appropriate court and with the land records office where the real property is located, if applicable.
Affidavit of Heirship Form Sample
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.
Affidavit of Heirship
Affidavit of Heirship Frequently Asked Questions
No, an Affidavit of Heirship does not transfer title. While Affidavit of Heirships can be considered evidence of a title, they are actually just presumptions of title. As the affidavit can only contain an opinion of 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 heirship. For this reason, an Affidavit of Heirship cannot be used as a means of transferring titles.
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 choose to 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.
Yes, an affidavit of Heirship needs to be notarized before a notary public. The document must also contain a notary seal for the document to be legally valid.