When a person dies without leaving a will, an affidavit of heirship may be needed to establish facts about the deceased person’s heirs and the transfer of property. While laws regarding an affidavit of heirship vary from state to state, the basic principles are the same across the nation. This guide will provide the information needed to understand the affidavit and why it is needed.
Who Needs an Affidavit of Heirship
When disposing of a deceased person’s property or transferring the deeds to the heirs, it is necessary to document the legal right of title has passed from the decedent, the person who has passed away, to the heirs. A probated will may establish the legal ownership, though even when a will has been probated the affidavit may occasionally be required before a deed transfer is affected.
However, if the deceased passed away without leaving a will, the affidavit of heirship can establish legally who the heirs are, the property the deceased left behind, and how that property is to be disbursed. Additionally, the affidavit can usually be executed without involving probate court. This can speed up the process of transferring ownership of the property. For this reason, even in cases where a will has been left behind, some people may choose to execute an affidavit. In cases where there is no dispute over the heirs or how to disburse the property in question, an affidavit of heirship may be used. In that case, the heirs may agree to use the affidavit to execute the decedent’s wishes instead of taking the will to probate court.
What the Affidavit Accomplishes
The affidavit spells out who the legal heirs to the property are, what the property is, and who gains ownership of the property. Legally specifying who the decedent’s heirs are establishes the rights and responsibilities of those heirs to dispose of the decedent’s property and wrap up the affairs on behalf of the deceased. A full list of the property owned by the decedent is included in the affidavit and establishes exactly what property is being transferred to the heirs. For land, this includes a legal description of the property, of the sort found on the title deed.
The affidavit also serves as an instrument for transferring ownership to the heirs. An affidavit of heirship may be used in lieu of a deed transfer and, in the case of land, the affidavit must be filed with the county recorder to establish the ownership of the land in the same way a deed would.
Who Is Party to the Affidavit of Heirship
The primary parties to the affidavit are the heirs themselves. This is usually the spouse or registered domestic partner and any living children or blood relatives of the decedent. This may also involve friends of the decedent or even a former spouse, but it is less common to have others involved in an affidavit of heirship because everyone involved must be in agreement on the distribution of the decedent’s property. The affidavit may also include information about heirs of the decedent who have passed away and who their heirs were.
The affidavit must be signed by witnesses under oath before a notary public. The laws regarding who may attest to the affidavit vary from state to state. In most states, the witnesses must be one or more disinterested parties – that is, the witnesses must not be heirs or family members of the deceased. This prevents any conflict of interest where the witness would have an incentive to lie on the affidavit. Some states may require only one witness, or witnesses who are family members, or a mix of family members and disinterested parties. It is important to know the state laws regarding who may attest to the affidavit.
The witnesses are usually required to know the decedent, the date they passed away, that names and birthdates of the family members and heirs, and whether the decedent had any outstanding debts at the time of their death. The witnesses will also usually be required to swear that they will not benefit financially from the estate themselves and can be held for perjury if their statements are false.
Executing the Affidavit
Once the witnesses have signed the affidavit in front of the notary, the document may be accepted as legal proof of heirship and transfer of ownership. In some cases, the document must be approved by a probate court. This is true in certain states that require this for any affidavit of heirship. Additionally, if the decedent left a will and it was in the process of being probated, the affidavit will need to be presented to the probate court for approval and to conclude the probate process.
If real estate was being transferred in the affidavit, it must also be filed with the county recorder’s office in the county where the land is located.
How to Create an Affidavit of Heirship
While the affidavit of heirship is a simplified way of disbursing the property of a deceased person, it is nevertheless a legal document that must be properly created and executed. As such, it may be beneficial to have a lawyer familiar with estate law help create the affidavit of heirship on your behalf and help walk you through the process of getting the appropriate witnesses and executing and filing the affidavit.
However, if you and the other heirs do not wish to engage an attorney for this process, it is possible to proceed to create the affidavit. Most states have an outline of what is required in the affidavit and that may be followed to ensure that all the requirements of the document are met. Consult your state’s website for information on the laws and requirements for an affidavit of heirship in your state.
Another option is to consult a legal forms website online. These sites have ready-made forms that require you to fill in your specific information to create a legal document. These are usually tailored to the requirements of your state. You will still need to familiarize yourself with your state’s requirements for witnesses and the requirements for filing the document with a county recorder or probate court.
While leaving a will is the best way to ensure the decedent’s wishes are carried out after their death, in many cases due to the absence of a will or in order to conclude the matter speedily an affidavit of heirship may provide a simple and speedy option for heirs to legally establish ownership of the decedent’s property.