What is an Affidavit of Heirship?
An affidavit of heirship is a written solemn oath that verifies and identifies the legal heirs to property within an estate held by a decedent. This affidavit of heirship definition sounds like a lot of legalese. Essentially, the affidavit identifies the rightful heirs of property within an estate after the death of a loved one and allows for the legal transfer of that property to change from the ownership of the decedent to their heirs.
How Does Affidavit of Heirship Work?
The affidavit of succession, in some states, also allows for the family members of the decedent to arrange their own terms for how the property should be disbursed, thereby bypassing the probate process. So long as there are no objections to the agreed terms, and it was completed and filed correctly, the court of states that allow this will often approve the affidavit. In other states, an affidavit is required when the decedent is without a distributee (e.g., legal heirs deceased); and in some cases, it is required when the number of distributees is limited to one.
While many consider a will to be the absolute document for distributing their estate upon their death, it is ultimately up to the probate court to determine if the will is, without a doubt, the individual’s last will and testament. Even then, there are no guarantees that it will be honored as per the exact specifications the decedent laid out depending on the obligations of the decedent prior to their death and the legality of their will. An affidavit of heirship can only assist in situations where the decedent is clear of debt with a smaller estate, all of which is dependent on the state under which the decedent resided.
More commonly, an heirship affidavit is used when the decedent was without a will at the time of their death. Since an affidavit is really just a tool that heirs can use to transfer real property from the decedent while bypassing the formal administration of the estate, an affidavit may be required in some states, even with a will, during the probate process. Additionally, it may be required that each heir submit an affidavit.
It should be noted that only some states allow for the use of affidavits and that their abilities of use can vary wildly. Texas makes for an excellent example of the differences between state regulations.
Luckily, regardless of the state-specific use-case, the process is fairly universal, along with the generally required information for an affidavit of heirship form.
How to Fill Out an Affidavit of Heirship
One of the first key steps that must be completed prior to moving on is locating two disinterested witnesses who have preferably known the decedent for 10 or more years. These could be neighbors, friends, or anyone who personally knew the decedent well and will not gain or profit from the disbursement of the estate. For example, an heir’s spouse may be considered an interested witness as he or she will benefit from the disbursed estate. The disinterested must state on the declaration of heirship, to the best of their knowledge, the children, marital status, and family of the decedent.
Additionally, the affidavit must identify the real property, state that the decedent didn’t have any debts, and whether or not the decedent had a will. There are cases where a decedent did not share that they had a will, which may complicate things with a title company or during other procedures down the road.
Other Key Information
The property in question must also be defined with its legal description within the affidavit of heirs, including the lot number and other tax and municipal information. Furthermore, all heirs’ names and addresses must be listed, along with all other parties of interest to the property (e.g., life estate holder).
Additionally, the marital status of the decedent is of critical importance. Bigamy, or dual marriages, is illegal in most states; if the decedent was never legally divorced, or there is no proof via documentation of a divorce, a current marriage is automatically nullified in the majority of states. As a result, the current spouse may be left completely out of the disbursement of the estate. If this is the case, and a family agreement can be reached in a state that allows for a joint affidavit of heirship, it may be possible to salvage this situation with the help of legal counsel.
It’s important that you do everything correctly; knowingly signing an incorrect affidavit can result in steep penalties, including sizable fines. Moreover, an affidavit can be contested if there are heirs who have been excluded, or you believe you should not be the one who receives the property. The court decides who is telling the truth, be sure to follow the rules and laws to the letter.
How to File Affidavit of Heirship
Once the affidavit of heirship for a house is completed and signed by two disinterested witnesses, it’s time to file it. To do so, it must be taken to the county records office in the county where the property is situated. The process of the affidavit being deemed valid can be as fast as 24 hours or as slow as 5 years, depending on your state; this is why it’s absolutely critical that deeds are not drafted and signed until after the affidavit is submitted and deemed valid.
Title Defects and an Affidavit of Legal Heirs
It is critical to note that there is no difference between an affidavit of heirship vs will when there are title defects, such as liens, debts, overdue property taxes, fines, or other problems. The affidavit is not a cure for such issues with the property, regardless of the correctness of the affidavit of heirship meaning that the state will need to process these debts from the estate via probate court or administration. If the property is cleared for the title to be transferred, it’s also critical that the deed used is a special warranty deed or deed without warranty.
Affidavit of Heirship Blank Form Sample
The forms themselves can be broken down into four main categories, a generic affidavit of heirship, joint affidavit of heirship, descent, and small estate. However, as stated previously, the rules and scope of this document and process vary between states and we highly recommend seeking legal counsel before taking action.
The forms themselves are relatively simple and easy to fill out. You can find them by following this link and selecting your state, or find a generic nationwide affidavit form for a range of use-cases here:
- Affidavits – Heirship – Intestate
- Affidavits – Heirship – Property Titles
- Affidavits – Heirship – With Spouse and Children
- Oil, Gas, and Minerals – Affidavits
- Affidavit as to Heirship of (Name of Person), Deceased (With Corroborating Affidavit)
- Affidavit of Death and Heirship (Information to Include in Affidavit)
- Affidavit of Heirship – Descent
- Affidavit of Heirship for House
- Affidavit of Heirship for Real Property
- Affidavit of Heirship for Small Estates
- Affidavit of Heirship for the Owner of the Property
Armed with a blank affidavit form, you and your loved ones can start the process of taking your lives back, with or without creating a will.