What is an Affidavit of Heirship?

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By Rochford Law Posted on October 22, 2021 at 11:57 AM

Did you know that in cases of forced heirship, the estate of a deceased is separated into two portions which tends to guarantee an inheritance for the family of the deceased. If you or a loved one is currently dealing with a situation that may require you to file an affidavit of heirship, or you are uncertain about your situation, then you’ve come to the right place.

Affidavits of Heirship are used in some states to establish the legal heirs of a person who dies without a will. While grieving the loss of a loved one, it can be difficult to understand the laws involved with heirship, intestacy, and probate. To determine whether these forms may be required or if a probate should be issued in place of these forms, you should consult a real estate attorney.

Here’s what you need to know:

  • Definition of Heirship
  • Affidavit of Heirship
  • Affidavit of Heirship & Real Estate
  • Filing for an Affidavit

Definition of Heirship

If a person dies intestate, an inheritor is entitled to receive money, property, or possessions from them. The term "intestate" refers to the situation where a deceased person died without a will in which they specified who their personal representative or executor is or how their assets were to be distributed.

A state's intestacy laws determine who becomes an executor and to whom assets are distributed in these situations. Generally, the heirs are the children, descendants, or other close or distant relatives of a deceased person. Spouses are usually not considered legal heirs because they are entitled to receive property under marital or community property laws.

The term "heirs" differs from the term "beneficiaries," who are legally entitled to receive the decedent's assets because the decedent designated them as the intended recipients in his or her will or trust. Naturally, beneficiaries and heirs are often the same thing.

Affidavit of Heirship

Affidavits of Heirship can be used to establish property ownership when a deceased individual leaves no will. In general, an affidavit of heirship is used when the deceased left only real estate, personal property, or a small estate. There are some states, such as California, that use a small estate affidavit instead of an Affidavit of Heirship, but only in limited circumstances.

In most cases, when someone passes away without a will and leaves property behind, their heirs will have to open a probate court case in order to receive ownership of the property. An Affidavit of Heirship is one of the common and more affordable ways to handle intestate estates, and in some instances it can avoid the time and expense of probate.

In the following circumstances, an Affidavit of Heirship may be recommended for the disposition of an intestate estate:

  • A will was not left by the decedent (intestate)
  • As the decedent's legal heir, you can identify yourself
  • If you do not want to go through probate, then you want to take possession of the estate of the deceased
  • There is consensus among the decedent's heirs as to how the estate should be divided
  • Verifying your right to the decedent's estate is possible through a third party

Affidavits of Heirship cannot be used in every situation, and state laws differ on how and when people can use them. Many heirs seek the advice of an experienced real estate attorney when determining the best way to handle an intestacy situation.

For help filing an affidavit of heirship, contact Rochford Law & Real Estate Title today!

Filing for an Affidavit

Affidavits of Heirship are a record of all known information about the family history and relationships of the decedent. The process of completing an Affidavit of Heirship is similar to the process of creating a family tree for the deceased.

The following information must be included in an heirship affidavit:

  • 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

The U.S. Department of Justice provides a sample Affidavit of Heirship that can provide more information.

A notary public, along with one or more others who are disinterested witnesses, must witness the completion of and signature on the Affidavit of Heirship. Depending on whether real estate is involved, once the Affidavit of Heirship has been completed, signed, and notarized, you will file it with the appropriate court or county office.

Contact Rochford Law & Real Estate Title

A real estate attorney can help file for an affidavit of heirship when you need it. Rochford Law & Real Estate Title offers comprehensive legal services for all your real estate transactions. Our professionally tailored real estate law services provide the guidance, counsel and direction needed to help you succeed.

Contact Rochford Law & Real Estate Title today!

Topics: Nashville Real Estate, Real Estate Attorney, Real Estate Lawyers