What Is an Affidavit of Heirship?

Executive summary

• An affidavit of heirship identifies the various family members of a deceased person who, to the signor’s best belief, are entitled to inherit from the deceased person.
• State law determines how Affidavits of Heirship may be used and the specific information they must contain.
• The signor should follow a strict format provided by their state and often must file the affidavit in the county where estate property is located.
• If there are disagreements surrounding heirship or the probate process, you should contact a probate litigation attorney to help you navigate a smooth estate administration process.

Introduction

When a person passes away without a valid will, their heirs are the individuals who are next in line to receive property from the estate. Legally speaking, a person’s heirs are generally spouses and close family members or descendants, such as children or grandchildren, depending on which relatives survive them.

Ideally, a person should create a last will and testament to identify the beneficiaries they choose to receive their assets. Wills may provide an inheritance to any person of the signor’s choosing, including individuals unrelated to the signor. However, if a person dies without creating a will, their estate and its assets will need to pass through a process known as intestate succession—this means that a probate court enters a judgment establishing the identity of the decedent’s heirs and how much they inherit under state intestacy laws. 

In order to distribute assets to the appropriate heirs, the court will need to identify the heirs in line to receive an inheritance. Filling out an affidavit of heirship form is one way to legally identify the heirs of an estate so that the court and the executor can ensure assets are distributed properly in line with state law. 

What is an Affidavit of Heirship?

An Affidavit of Heirs or Affidavit of Heirship is a sworn statement that identifies the relatives who may be the heirs of a person who passes away. Commonly, the Affidavit of Heirship should list the names, ages, and addresses of the decedent’s relatives, and it should indicate the date of death of any deceased relatives. Each state that recognizes Affidavits of Heirship imposes rules and conditions specific to that state. For example, Texas law recognizes Affidavits of Heirship in two limited contexts and requires that Affidavits of Heirship follow the strict format described in Texas Estates Code section 203.002.

In California, courts may rely on an Affidavit of Heirship to establish heirship and the line of succession for inheriting portions of an estate after an individual’s death. An affidavit should include detailed information about the individual’s family history and personal relationships, like a family tree. 

Why is an Affidavit of Heirship filed?

In California, an Affidavit of Heirs is filed in probate proceedings as proof of who the deceased person’s relatives are for purposes of providing them with notice of the proceeding and to determine who is entitled to the deceased person’s assets. Generally, an Affidavit of Heirs is filed when a person dies without a will, but some courts require the filing of the document even if the decedent had a will. 

Some courts also require that an Affidavit be filed in guardianship proceedings to identify the ward’s next of kin for purposes of providing notice of the proceeding. The Affidavit of Heirship helps identify who is in line to receive property when the court transfers ownership.

Texas law provides for the use of Affidavits of Heirship in only two limited ways, which are addressed later in this article. 

Small estate affidavits are governed by different rules than Affidavits of Heirship, but they are often confused due to some overlapping information contained in both types of affidavits. A small estate affidavit may be used to avoid the probate process to save time and money when there is no will. This is most common in small estates where probate isn’t necessary to begin with. For example, in California, estates valued at a total of $184,500 or less can avoid probate. 

In Texas, this threshold is $75,000, according to Texas Estate Code. If you are considering relying on an Affidavit of Heirship, you may wish to consider a small estate affidavit instead. 

Who fills out an affidavit of heirship?

An Affidavit of Heirs or an Affidavit of Heirship must be filled out by someone who is personally familiar with the deceased’s family structure and relatives. This person who signs the affidavit is known as the “affiant.” This requirement is intended to protect the estate and minimize the risks of disputes by ensuring that the affiant is most likely to create a reliable and accurate picture of the decedent’s family tree and potential heirs.

How to fill out an affidavit of heirship: A step-by-step guide

Completing an Affidavit of Heirship is not a complicated process, but it is important to understand how the process works. Affidavits of Heirship may be filed with your county, so you may be able to find a form affidavit from your county’s website.

In addition to the use of official forms, Affidavits of Heirship may be created from scratch as long as they meet the correct criteria. From there, you should take the following steps. 

1. Gather necessary information 

An Affidavit of Heirship should include key information about the decedent, their family lineage, and the details of their death. The goal is to establish a clear, accurate picture of the decedent’s family history and personal relationships. 

States often require that Affidavits of Heirship include the following important information:

• The name and address of the decedent
• The date and place of the decedent’s death 
• The location of the property in question
• A statement addressing the affiant’s relation to the decedent
• The decedent’s marital history
• The decedent’s family and descendants.

2. Complete the form accurately

While completing the affidavit, it’s important to be as thorough as possible. Be sure to understand the circumstances and effect of Affidavits of Heirship applicable to your state. If your state’s statutes provide a list of requirements, include all the required information accurately and with as much detail as you can. If you are the affiant, it may be helpful to consult family members like the decedent’s siblings, children, and others to gather any additional information or insight about the decedent’s other personal relationships that you may not know of. 

If you are unsure about completing the form properly, it’s a good idea to seek legal support to ensure that the information is accurate, comprehensive, and in line with what the court expects. 

3. Notarization process

The Affidavit of Heirship must be signed and sworn to in front of a notary public by a person who knew the decedent and their family history. Notarization of the affidavit is almost always required by state law. 

4. Filing the affidavit

If you are relying on an Affidavit of Heirship in the context of real property ownership, you should file your affidavit with the county clerk where the real property is located. There will often be a small filing fee. Although this number varies from county to county, a common reference in Texas is $15 for the first page and $4 for each additional page. 

Does an Affidavit of Heirship need to be notarized?

Yes, an Affidavit of Heirship needs to be notarized. An Affidavit of Heirship must be signed by the affiant before a notary public, and a notary seal is required for the document to be legally valid. Texans may avoid notarization by relying on the unsworn declaration format provided by Texas Civil Practice and Remedies Code section 132.001, but courts often impose local rules that require notarization. 

When do I need a probate lawyer?

If a loved one passes away with or without a will, you should contact a probate lawyer as soon as possible to discuss your options.  Depending on the circumstances, different alternatives may be available to probate an estate, and an experienced probate lawyer can help you decide the best and most cost-effective way to handle your loved one’s estate.

Some situations where it may be helpful to contact a probate lawyer include: 

• There are disputes between family members regarding the accuracy of the line of inheritance
• An heir has been omitted from the affidavit or the legal process
• A person omitted from the affidavit claims to be an equitable heir as a common-law spouse or via adoption-by-estoppel 
• An Affidavit of Heirship is used to improperly distribute the community property of a surviving spouse 
• Beneficiaries of an estate disagree with the distribution of the inheritance they are entitled to
• You are unsure whether filing an affidavit of heirs is necessary or have questions about the process
• You have questions about the necessary steps involved in the probate process.

A probate attorney can help you navigate disputes or simply provide guidance about what to expect when navigating probate. If you have any questions at all, you should contact an experienced probate administration attorney for support.

Can you contest an Affidavit of Heirship?

Yes, you can contest an affidavit. An Affidavit of Heirship should be filed in good faith that it is correct. However, sometimes good faith is not enough, and the accuracy or validity of an affidavit may be called into question. 

Some grounds for contesting an Affidavit of Heirship include:

• The deceased person died with a valid will. 
• The affidavit lacks information required by state statute. 
• Other heirs claim that there are inaccuracies in the document surrounding heirship.
• Heirs may contest that they were excluded or omitted from the document as a potential heir to the estate. 
• Claims that the affiant did not have a strong enough personal relationship with the decedent to file the affidavit
• Other individuals believe that they have a legal right to heirship for assets of an estate
• You have a claim against the deceased person or their estate, and an Affidavit of Heirship has been used to avoid probate,

The most common contest for an Affidavit of Heirship comes from omitted heirs or individuals who feel that they have a right to an inheritance but were ultimately excluded from the document. Most commonly, the omitted heir would open a probate proceeding and ask the judge to enter an heirship judgment, which would take precedence over the affidavit. 

In the event of a contested heirship, the court will review potential evidence to determine whether the Affidavit of Heirship is accurate or if there is validity to the contest and the affidavit should be invalidated. In Texas, many probate judges prohibit the use of these affidavits in any contested matter, preferring live witness testimony. 

Affidavit of Heirship in Texas: What you should know 

In Texas, this form is known as an Affidavit of Heirship or Affidavit Concerning the Identity of Heirs, covered by Texas Estate Codes 203.001 and 203.002. Texas law recognizes Affidavits of Heirship in just a few limited circumstances, and the affidavits cannot establish heirship by themselves. 

First, probate judges may consider Affidavits of Heirship instead of live testimony to support the court’s heirship judgment, especially when the heirship is uncontested. Second, Affidavits of Heirship may be used as evidence in lawsuits over the ownership of real property. Texans often attempt to use Affidavits of Heirship to avoid formal probate and promote the sale or transfer of estate assets, but this approach is not recognized by Texas law and is usually not appropriate. 

In the context of heirship proceedings, Texas requires that two people who do not have a financial interest in the estate but knew the deceased and their family history give testimony as to the identity of surviving family members. Courts will usually accept Affidavits of Heirship instead of live witness testimony if the heirship proceeding is uncontested. 

Often these heirship witnesses are unrelated to the decedent, such as a close friend, neighbor, or an old family acquaintance. Courts will also accept testimony from family members who knew the decedent, but their relation is too distant to be an heir themselves. 

Texas also recognizes Affidavits of Heirship as evidence in lawsuits to establish ownership of real property. If used in this context, the Affidavit of Heirship must have been filed in the county records where the subject real property is located for at least five years before submission of the affidavit as evidence. 

Once the form is complete and notarized, you should file your affidavit form with the county where the deceased owned real estate and prepare to pay any potential filing fees, which can vary by county. Even if all these requirements are met, Affidavits of Heirship are not binding on the judge. Affidavits of Heirship should guide the judge’s decision, however, if no competing evidence contradicts the affidavit. 

Texans sometimes attempt to use Affidavits of Heirship to avoid probate. Even though an Affidavit of Heirship has no binding legal effect, some title companies will choose to accept Affidavits of Heirship instead of requiring that the seller obtain an heirship judgment. Individuals should take extreme caution before relying on an Affidavit of Heirship in this context. 

At a minimum, they should ensure that the decedent died without a will, there is no possibility of a dispute among family members, the decedent died without significant debts, there is no need to open a formal probate administration, and the affidavit is used to transfer only a limited amount of real property. Even then, the use of Affidavits of Heirship to avoid probate can be risky. A Texas probate litigation attorney can help assess and explain the pros and many cons of using Affidavits of Heirship in this unsanctioned context. 

Affidavit of Heirship in California: What you should know

Covered under California Probate Code Section 13-101, an Affidavit of Heirship is rarely used in California, but it can be used to facilitate the transfer of property to appropriate heirs and aid in skipping the probate process in certain circumstances. In the case of small estates valued under $184,500 when there is no will, the affidavit is often used in conjunction with a Small Estate Affidavit and an Affidavit for the Collection of Personal Property. 

An estate should file these documents together with the county before filing for probate. California probate codes state that the petition should include the heir’s basic information, a description of the property being claimed, the successors to the decedent, and the decedent’s death certificate. Similar to Texas, these forms must be completed by an affiant close to the decedent and signed before a public notary.  

Establish heirship of your estate

An Affidavit of Heirship is an option in some states for establishing all the potential heirs in line to receive assets after a person passes away without a will. However, an Affidavit of Heirship is not the only option for doing so. Depending on your state and circumstances, Affidavits of Heirship may be disfavored or prohibited as a means to avoid probate. If there are questions or disputes surrounding heirship to your or family’s estate, you should contact a probate estate administration attorney for support. 

Our probate estate litigation attorneys at RMO lawyers can help you identify the heirs that are entitled to property in your estate, resolve disputes, and offer guidance for a smooth estate administration process. Whether there is uncertainty around heirs or conflict in the process, we’ll help you navigate complex family dynamics and build a strategy to secure your rightful access to an inheritance.

Schedule a consultation with our attorneys at RMO to learn more about your options.