An Affidavit of Heirship is a legal document used to declare the legal heir of someone who died without a will. An Affidavit of Heirship makes it possible for the deceased’s assets to be transferred to the rightful heir.
To ensure no one takes advantage of the deceased’s death, an Heirship Affidavit must be signed by two witnesses who have no interest or stake in the matter.
1. What is an Affidavit of Heirship?
An affidavit of heirship is a document that identifies the heirs of a deceased person who died without a valid or enforceable will. This document is used to allow 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 be used to establish ownership of personal property, such as bank accounts and automobiles. An affidavit of heirship allows family members to avoid the expensive and time-consuming process of settling the decedent’s estate in probate court.
Its function is to present all known information about the decedent, including all known family relations such as spouse, parents, children, siblings, nieces, nephews, etc. in order to appropriately distribute the person’s property. The heirs of the decedent must be in agreement 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.
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 property of the decedent.
- 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 to the best of their knowledge, the information contained in the document is truthful and accurate.
- 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.
Most states limit the use of 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 against the estate agrees on the disbursement.
As a reference, this document is also referred to as an:
- Heirship Affidavit
Affidavit of Heirship PDF Sample
Here’s a sample affidavit of heirship establishing the heir(s) of a fictional decedent, “Jerry Wright”: Sample PDF.
2. When an Affidavit of Heirship is Needed
An affidavit of heirship is needed when a decedent dies without leaving a valid, enforceable will. Under these circumstances, their real and personal property cannot be distributed to their heirs, sold, or disposed of. Without using an affidavit of heirship, a decedent risks heirs and other loved ones having to go through a lengthy and expensive probate process to distribute their property.
Keep in mind that this document can only be used if all legitimate heirs of the decedent agree as to how the property will be dispersed, otherwise the matter must be presented to the probate court. It may also be necessary when a decedent’s will expresses their intent to distribute their real property, but fails to specifically 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 are meant to receive.
3. 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
- Or otherwise distribute assets
Spouses also aren’t able to 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.
4. Most Common Uses
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 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.
5. What Should be Included
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 return mailing address. The most common elements that must be included 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, as well as 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.