What Is an Affidavit of Heirship?
When a person dies without a will, it can give rise to a number of challenges. It can be difficult to corral all of their assets as well as to identify who should inherit what. Often, estates without a will wind up in probate court, which can be time-consuming and costly. Some states offer a means to fast-track inheritance for smaller estates, even without a will, through the use of a document called an Affidavit of Heirship. Continue reading to learn about the Affidavit of Heirship, and reach out to an experienced, qualified forensic genealogist for professional assistance identifying the proper heirs to an estate.
So What Exactly Is an Affidavit of Heirship?
An Affidavit of Heirship is a legal document that can be used by putative heirs to establish their right to inheritance. The Affidavit is a sworn statement made by a putative heir stating that there is a person who died intestate, meaning they died without a will or other controlling document, and that the affiant is a legal heir pursuant to the state’s intestacy law. Depending upon the law of the state, the Affidavit can allow an heir to take possession of property without a will and without going through probate court.
What Is in the Affidavit?
The Affidavit of Heirship is a form offered by many states and can typically be found on a state or county court website. The form will typically require the following information:
- Identifying information about the decedent (name, address, date of death)
- Marital history
- Names of surviving heirs (children, siblings, parents, nieces and nephews)
- A statement that the decedent died without a will
- A statement that the affiant is a legal heir under state law
- The types of property involved that meet the state’s rules about Affidavits of Heirship and that the affiant intends to claim
- Agreement by the heirs about how property should be divided
- Verification from a third party witness that the affiant has the right to inherit
Depending on the state, the document may need to be executed in front of a notary. Once properly executed, it should be filed with the court or the county, depending upon the rules of the state.
When Do You Need an Affidavit of Heirship?
If you are administering an estate or you are the putative heir to an estate, you may need to rely on Affidavits of Heirship to establish who has the right to assets from the estate. Typically, an Affidavit of Heirship will be a useful tool when:
- A decedent died intestate (without a will)
- A putative heir can identify themselves as a lawful heir to the decedent
- The heir hopes to take possession of property without going through probate
- The decedent’s heirs have agreed on how to distribute the estate
- There’s a third party who can verify the putative heir’s right to the estate
Affidavits of Heirship are not useful in every situation, and state law differs about how precisely they may be used. They may not, for example, allow the heir to skip probate, depending on the state or the amount of property involved. Typically, skipping formal probate court is an option only when there is a small amount of money, real property, or personal property left in the estate. Parties seeking to use or rely on an Affidavit of Heirship should consult with a probate lawyer to ensure they understand their rights and obligations.
If you’re an estate administrator in need of experienced assistance identifying and locating missing heirs to an estate and for determination of heirship proceedings, or heir research services in order to satisfy due diligence requirements, contact a dedicated and comprehensive forensic genealogist at Von Langen, LLC at 800-525-7722.