What Is an Affidavit of Heirship?

An Affidavit of Heirship is a legal document used in some states to establish the legal heirs of a person who dies without a will. The laws surrounding heirship, intestacy, and probate can be complicated and confusing to navigate, especially while mourning the loss of a loved one. Consulting an estate attorney is key to understanding whether these forms may be used or a probate will be needed.

 

 

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What Is the Meaning of Heirship?

Heirship is the legal right to receive money, property, or possessions from a person who has died intestate. The word “intestate” means that the deceased person, who is often called the decedent, died without a will detailing who their personal representative or executor is or how that person is to distribute their assets. In these situations, state intestacy laws determine who has priority to be appointed executor and to whom to distribute the decedent’s property. 

Heirs are usually children, descendants, or other close or sometimes distant relatives of the decedent. Spouses are not typically classified as legal heirs since they are entitled to receive property under marital or community property laws.

Heirs are distinct from beneficiaries, who are legally entitled to receive the decedent’s property because the decedent designated them as the intended recipients of the decedent’s assets in a will or trust.  Obviously, it’s not unusual that beneficiaries are heirs as well.

What Is an Affidavit of Heirship?

An Affidavit of Heirship is a sworn statement that heirs can use in some states to establish property ownership when the original owner dies intestate. Affidavits of Heirship are generally used when the decedent only left real property, personal property, or had a small estate. However, some states, like California, use a small estate affidavit rather than an Affidavit of Heirship, and then only in limited circumstances.

Generally, whenever someone dies without a will and leaves property behind, their heirs may need to open a probate court case so that title to that property can pass to them. However, in some instances heirs can avoid the time and expense of probate by using an Affidavit of Heirship, making it one of a common and less expensive ways to handle intestate estates.

If the following statements are all true, an Affidavit of Heirship may be a good option for disposing of an intestate estate: 

  • The decedent died without a will (intestate)
  • You can identify yourself as the decedent’s lawful heir
  • You want to take possession of the decedent’s estate without going through probate
  • All of the decedent’s heirs have agreed on how to distribute the estate
  • There is a third party who can verify your right to the decedent’s estate

It is essential to keep in mind that heirs cannot use Affidavits of Heirship in every situation, and state laws differ on how and when people can use heirship affidavits. It is very common for heirs to seek an experienced estate attorney’s advice when determining the best way to deal with an intestacy situation.

 

What Is an Affidavit of Heirship for a House?

Affidavits of Heirship can also be used in some states to avoid probate for the transfer of real estate. Instead of going through the probate process to have the title transferred to the decedent’s heirs, the heirs can file the Affidavit of Heirship with the deed records office in the county where the decedent’s real property lies. Filing an heirship affidavit allows for a title transfer without having to deal with probate.

When a property owner dies intestate with a house titled in their name, an Affidavit of Heirship will allow the house’s title to pass to the decedent’s heirs. The house cannot be transferred with a clean chain of title until the heirs draft, execute, and file an Affidavit of Heirship. 

Once the heirs record the Affidavit of Heirship and the deed with the county clerk, they become the house’s new owners and are free to keep the property, sell it, or transfer ownership of the house to a third party.

 

How Do I File an Affidavit of Heirship?

The Affidavit of Heirship is a list of all known information about the decedent’s family history and relationships. Filling out an Affidavit of Heirship is similar to creating a family tree for the deceased. 

An heirship affidavit must include the following information:

  • The decedent’s name and address.
  • The date and place of death.
  • The decedent’s marital history.
  • The decedent’s family members, including:
    • Children
    • Siblings
    • Parents
    • Nieces and nephews

For more information, take a look at this sample Affidavit of Heirship provided by the U.S. Department of Justice.

An Affidavit of Heirship must be signed, and one or more disinterested witnesses must complete and/or witness the signature, including a notary public. Once the Affidavit of Heirship has been completed, signed, and notarized, you will either file it with the appropriate court or county recorder’s office, depending on whether real estate is involved. Filing an Affidavit of Heirship creates a legal record of the decedent’s heirs, which can speed up the estate settlement process. 

Can an Affidavit of Heirship Be Contested?

Yes, absolutely. Unlike a judicial determination that conclusively determines the decedent’s heirs, an Affidavit of Heirship only creates a presumption that the facts are correct. Therefore, the family lineage established in an Affidavit of Heirship can be contested. If an heir has been omitted from the Affidavit of Heirship, their legal rights to inherit the decedent’s property are not affected. Instead, the forgotten heir can present evidence to establish their heirship and overrule the Affidavit of Heirship, either entirely or partially. 

Who Can Contest or Dispute an Affidavit of Heirship?

Most commonly, an omitted heir will contest or dispute an Affidavit of Heirship, typically by filing a correction affidavit, otherwise presenting evidence of their relationship to the decedent, or initiating court proceedings. For example, suppose the Affidavit of Heirship filed by a decedent’s children from a second marriage does not include a child from a first marriage. In that case, the excluded child could provide a birth certificate and other evidence to establish their relationship with the decedent and the right to inherit. 

When Should I Contact an Estate Attorney?

If a family member or other loved one has died intestate, you should contact an estate attorney to see if a probate alternative, like an Affidavit of Heirship or small estate affidavit, is available.  An experienced estate lawyer knows how to help grieving family members decide the best course of action to take when a loved one passes away with or without a will.

Have questions? We’re happy to discuss.

Call (424) 320-9444 or email hello@rmolawyers.com

 

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About RMO, LLP

RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.