What is an Affidavit of Heirship?
An Affidavit of Heirship is a sworn statement under oath by one or more members of a family. It is used as a legal document to establish the heirs of a Decedent.
- The heirs are the children, family, or friends who are legally entitled to the property of a deceased person.
- The Decedent is the deceased person.
An Affidavit of Heirship must be affirmed by at least two witnesses who were familiar with the Decedent, but do not stand to benefit from the estate. The heirs and witnesses verify that the Decedent has passed away and that the Decedent has no outstanding debts. The Heirship Affidavit must then be signed by all parties and notarized by a notary public.
An Affidavit of Heirship is mainly used in cases where the Decedent did not leave a will. The Heirship Affidavit must be recorded in the county where the property lies.
Heirship Affidavits can be used as an alternative to probate of real estate. The use of Heirship Affidavits instead of probate is a common formality accepted by title insurance companies. If a title insurance company issues an insurance policy for a piece of property, it is most likely that there is good title to the property, even if there is an unprobated estate in the chain of title. The main goal of an Affidavit of Heirship is to give the title insurance companies a mechanism to issue the title policy.
When a person passes away without a will and leaves property titled in their name, the property is permanently attached to the name of that deceased person. Most of the time, the property will go through the the probate process to get the deceased’s name removed and transferred into the name of the living heirs. However, there is an exception when real estate is involved that permits the heirs to keep the real estate out of probate. This exception is for the heirs to file an Affidavit of Heirship with the county that the property is located.
An Affidavit of Heirship is a formal document that is fairly standardized from state to state in the United States. Most Heirship Affidavits consist of the following statements about the property, Decedent, witnesses, and family members:
- A description of the property
- Name of the Decedent
- The state and county where the property lies
- Name and address of the witnesses
- Questions about the relationship of the witnesses to the Decedent
- Questions about the Decedent’s will
- Questions about probate
- Questions about the Decedent’s debts and taxes owed
- Questions about the Decedent’s family members
- Space for signatures
- Place for Notary