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 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 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., 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.
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 directing assets’ distribution after death.
- Decedent’s Estate: the real and personal property that the person owned at the time of death.
- Real Property: all real estate owned by the decedent, including tracts of land, buildings, and other fixed features on the property. This includes houses, barns, outbuildings, business offices, and other developments.
- Personal Property: property not connected to the land, such as cars, furniture, bank accounts, clothing, etc.
- Heirs: 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 must sign the affidavit and swear under oath that, to the best of their knowledge, the information 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 authentication seal 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 this affidavit to distribute personal property amongst heirs, but only when everyone with a claim against the estate agrees on the disbursement.
Most states that only allow affidavits of heirship to be used for real property extend their coverage to include automobiles owned by the decedent.
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 an affidavit of heirship, a decedent risks heirs and other loved ones going through a lengthy and expensive probate process to distribute their property.
Remember that this document can only be used if all legitimate heirs of the decedent agree on 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 expressly 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.
An affidavit of heirship can address such intent in greater detail, minimize confusion, and prevent property distribution from being determined by a probate court.
Every state has rules about distributing real and personal property should a person die without leaving a valid will. These rules can structure an affidavit of heirship and improve an heir’s likelihood of success in receiving the property they are meant to receive.
The Consequences of Not Having One
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 can’t 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.
If the decedent’s real property is located in more than one county or state, you must use a separate affidavit of heirship for each location.
The Most Common Situations For Using This Document
An affidavit of heirship is most commonly used when a surviving spouse is not on a real estate deed. A real estate deed establishes real property ownership 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 when there are few heirs and distribution is consistent with state intestate laws.
5. What Should be Included
Each state has its 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 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 valid. Party information also includes the decedent’s name and 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 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, other assets, and the bank or financial institute that manages the accounts.
- Debts and Liabilities: List all of the decedent’s unpaid liabilities and debts if known.
- 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 must be filed with the appropriate court and the land records office where the real property is located.
Call or visit your county courthouse or check their website to determine where and how to file an affidavit of heirship.