An affidavit of heirship is used to transfer personal property and/or real property written by a disinterested third party who can testify to the relationship of the surviving spouse(s) and/or heir(s).

Table of Contents

• What is an Affidavit of Heirship?
• What Should Be Included in The Affidavit Of Heirship?
• When is an Affidavit of Heirship Needed?
• Consequences of Not Having Affidavit of Heirship
• How To Fill Out an Affidavit of Heirship
• Frequently Asked Questions
• Does an Affidavit of Heirship transfer title?
• How much does an Affidavit of Heirship cost?
• Does an Affidavit of Heirship need notarized?
• What are the consequences of not having an affidavit of heirship?
• Where can I get an affidavit of heirship form?
• Sample of Affidavit of Heirship

What is an Affidavit of Heirship?

An Affidavit of Heirship is a legal document used to establish the heirs of a deceased person and their respective interests in the deceased person's estate when the deceased person dies without a will (intestate) or when there are uncertainties about the heirs and their inheritance rights. This affidavit is typically used in situations where formal probate proceedings are not necessary, such as when the estate is relatively small and straightforward.

Key points regarding an Affidavit of Heirship include:

1. Purpose: The primary purpose of an Affidavit of Heirship is to provide a sworn statement, signed by individuals who have personal knowledge of the deceased person's family and estate, to establish who the legal heirs are and their respective shares of the estate.

2. Heir Identification: The affidavit identifies the deceased person's surviving spouse, children, and other legal heirs. It may also specify the percentage or fraction of the estate that each heir is entitled to inherit.

3. No Will Required: Unlike the probate process for estates with a valid will, an Affidavit of Heirship can be used when the deceased person did not leave a will. It helps simplify the process of transferring assets to the heirs.

4. Real Estate Transfers: Affidavits of Heirship are often used in real estate transactions to transfer property ownership from the deceased person to their legal heirs without the need for formal probate.

5. Witnesses and Notarization: Affidavits of Heirship require the signatures of individuals who have personal knowledge of the family and estate, such as family members, friends, or neighbors. It is typically notarized to add legal validity.

6. Property Records: Once completed and notarized, the affidavit may be filed in the real property records of the county where the deceased person owned real estate to provide notice of the heirs' claims to the property.

7. Use in Financial Matters: Affidavits of Heirship can also be used to claim assets held in banks, financial institutions, or other entities where the deceased person had accounts or investments.

It's important to note that the requirements and acceptance of Affidavits of Heirship can vary by jurisdiction. Some states have specific laws governing the use and content of these affidavits, while others may rely on common law principles. It's advisable to consult with legal professionals or estate experts when using an Affidavit of Heirship to ensure compliance with local laws and to facilitate the efficient transfer of assets to the rightful heirs.

What Should Be Included in The Affidavit Of Heirship?

An Affidavit of Heirship is a legal document used to establish the heirs of a deceased person and their respective interests in the deceased person's estate when there is no will or when there are uncertainties about the heirs. While the specific requirements for an Affidavit of Heirship can vary by jurisdiction, here are common elements that should be included:

1. Title: The document should be titled as an "Affidavit of Heirship" to indicate its purpose.

2. Jurisdiction: Identify the jurisdiction or county where the affidavit is being executed.

3. Affiant Information: Provide information about the affiant(s) who are making the sworn statement. This typically includes their full legal names, addresses, and contact details.

4. Deceased Person's Information:
   • The full legal name of the deceased person.
   • Date of birth and date of death.
   • Place of death (city and county).

5. Relationship to the Deceased: Clearly state the affiant's relationship to the deceased person, such as "friend," "neighbor," "family member," or "witness."

6. Identification of Legal Heirs: List the legal heirs of the deceased person, including:
   • Surviving spouse, if applicable.
   • Children, if any, and their full names.
   • Other surviving relatives or heirs, if applicable.

7. Heirship Status: Specify the status of each heir, such as "surviving spouse," "child," or "next of kin." Include the percentage or fraction of the estate that each heir is entitled to inherit, if applicable.

8. Description of Knowledge: Describe how the affiant(s) have personal knowledge of the deceased person's family and heirs, including any relevant interactions or relationships.

9. Oath and Affirmation: Include a sworn statement or affirmation that the information provided in the affidavit is true and accurate to the best of the affiant's knowledge and belief.

10. Notary Acknowledgment: Provide a space for the affiant(s) to sign the affidavit in the presence of a notary public. The notary will verify the affiant's identity and witness their signature.

11. Date: Include the date on which the affidavit is signed and notarized.

12. Notary Public Information: Include the notary public's information, including their name, commission expiration date, and seal.

13. Witnesses (if required): Some jurisdictions may require witnesses in addition to the notary public. If witnesses are needed, provide spaces for their signatures and relevant information.

14. Recording Information: If the affidavit is being used for real estate purposes, include a section for recording information, such as the county and book/page number where it will be filed in property records.

It's important to consult with legal professionals or follow the specific requirements of your jurisdiction when creating an Affidavit of Heirship, as the content and format may vary. Properly executed and notarized affidavits can help establish the heirs' claims to the deceased person's estate and simplify the process of asset transfer without the need for formal probate proceedings.

When is an Affidavit of Heirship Needed?

An Affidavit of Heirship may be needed in various situations when there is a need to establish the legal heirs of a deceased person and their respective interests in the estate. Some common scenarios in which an Affidavit of Heirship is typically needed include:

1. No Valid Will (Intestate): When the deceased person did not leave a valid will (died intestate), an Affidavit of Heirship can help identify the rightful heirs who will inherit the estate's assets.

2. Real Estate Transactions: Affidavits of Heirship are often used in real estate transactions to transfer ownership of property from the deceased person to their legal heirs without the need for formal probate. This is especially useful when the property is relatively small and straightforward.

3. Bank and Financial Accounts: Financial institutions may request an Affidavit of Heirship to release funds or assets held by the deceased person to the legal heirs or beneficiaries.

4. Life Insurance Claims: Beneficiaries of life insurance policies may need to submit an Affidavit of Heirship to the insurance company to establish their status as heirs and claim the policy's proceeds.

5. Stocks and Investments: Affidavits of Heirship can be used to update ownership records for stocks, bonds, or investment accounts held by the deceased person, allowing the assets to be transferred to the heirs.

6. Government Benefits: To claim survivor benefits, such as Social Security benefits, pensions, or veterans' benefits, family members may need to provide an Affidavit of Heirship to establish their relationship with the deceased person.

7. Small Estates: In cases where the deceased person's estate is small and doesn't meet the threshold for formal probate proceedings, an Affidavit of Heirship can be a simpler and more cost-effective way to distribute assets.

8. Debt Settlement: Creditors and debtors may use Affidavits of Heirship to determine who is responsible for the deceased person's debts and to facilitate debt settlement.

9. Ownership Verification: To confirm ownership and transfer assets, such as vehicles, when the registered owner has passed away.

10. Dispute Resolution: In cases where there are disputes or uncertainties about the deceased person's heirs, an Affidavit of Heirship can help clarify the legal heirs and their respective shares.

Consequences of Not Having Affidavit of Heirship

Not having an Affidavit of Heirship in situations where it is needed can lead to several consequences, which can affect the proper distribution of the deceased person's assets and create legal and financial complications. Some potential consequences of not having an Affidavit of Heirship include:

1. Uncertainty of Heirship: Without a documented Affidavit of Heirship, there may be uncertainty about who the legal heirs of the deceased person are. This can lead to disputes among potential heirs or beneficiaries.

2. Delay in Asset Distribution: The absence of an Affidavit of Heirship can delay the distribution of the deceased person's assets to the rightful heirs. This can be especially problematic when heirs need financial support.

3. Legal Complications: The lack of clarity regarding heirship can result in legal disputes and litigation among family members or potential beneficiaries, leading to costly and time-consuming legal proceedings.

4. Asset Frozen or Unclaimed: Financial institutions, insurance companies, and other entities may freeze or hold onto the deceased person's assets, such as bank accounts or life insurance proceeds, until the heirship is established. This can result in unclaimed assets.

5. Real Estate Issues: In real estate transactions, the absence of an Affidavit of Heirship can complicate property transfers and cloud property titles. This may hinder sales or refinancing efforts.

6. Inefficient Probate Process: In cases where a probate court is involved, the lack of an Affidavit of Heirship can necessitate a more complex and costly probate process to determine heirs and distribute assets.

7. Missed Benefits: Beneficiaries may miss out on various benefits, such as Social Security survivor benefits or pension payments if they cannot provide evidence of their status as legal heirs.

8. Debt Handling Issues: Creditors and debtors may encounter difficulties in determining who is responsible for the deceased person's debts, potentially leading to collection efforts against the wrong parties.

9. Tax Implications: Delays in the distribution of assets or disputes over heirship can have tax implications, including potential penalties or missed opportunities for tax planning.

10. Inaccurate Records: Failure to establish heirship can result in inaccurate ownership records for assets such as vehicles, real estate, and financial accounts.

How To Fill Out an Affidavit of Heirship

Filling out an Affidavit of Heirship involves providing detailed information about the deceased individual, their legal heirs, and the circumstances of the deceased person's estate. While the specific requirements may vary by jurisdiction, here are general steps to fill out an Affidavit of Heirship:

Step 1: Identify the Jurisdiction: Determine the jurisdiction or state where the Affidavit of Heirship is being executed, as the format and requirements may vary.

Step 2: Obtain the Appropriate Form: Obtain the official Affidavit of Heirship form required for your jurisdiction from a reliable source, such as a government agency, legal professional, or online resource.

Step 3: Header Information: Fill in the header section of the form, including the name of the court or jurisdiction, the case number (if applicable), and the title "Affidavit of Heirship."

Step 4: Affiant Information: Provide information about the affiant(s) who are making the sworn statement. Include their full legal names, addresses, and contact details. Clearly state the affiant's relationship to the deceased person.

Step 5: Deceased Person's Information:

• The full legal name of the deceased person.

• Date of birth and date of death.

• Place of death (city and county).

Step 6: Relationship to the Deceased: Specify the relationship of each affiant to the deceased person, such as "friend," "neighbor," "family member," or "witness."

Step 7: Identification of Legal Heirs: List the legal heirs of the deceased person, including:

• Surviving spouse, if applicable.

• Children and their full names.

• Any other surviving relatives or heirs.

Step 8: Heirship Status: For each heir, indicate their status (e.g., "surviving spouse," "child," "next of kin") and the percentage or fraction of the estate that they are entitled to inherit, if applicable.

Step 9: Description of Knowledge: In the body of the affidavit, describe how the affiant(s) have personal knowledge of the deceased person's family and heirs. Include relevant interactions or relationships that establish the affiant's knowledge.

Step 10: Oath and Affirmation: Include a sworn statement or affirmation by the affiant(s) that the information provided in the affidavit is true and accurate to the best of their knowledge and belief.

Step 11: Signatures: The affiant(s) must sign the affidavit in the presence of a notary public or another authorized official. Ensure that the signature is dated.

Step 12: Notarization: The affidavit must be notarized for legal validity. A notary public will verify the affiant's identity, witness their signature, and apply their seal.

Step 13: Witnesses (if required): Some jurisdictions may require additional witnesses, in addition to the notary public. If witnesses are needed, provide spaces for their signatures and relevant information.

Step 14: Copies and Submission: Make copies of the completed and notarized Affidavit of Heirship for your records and any entities or institutions that require it, such as financial institutions or real estate offices.

Step 15: Submit as Required: Submit the affidavit to the relevant authorities or organizations based on its intended use, following their specific procedures and requirements.

Always consult with legal professionals or follow the specific requirements of your jurisdiction when creating an Affidavit of Heirship to ensure compliance with local laws and regulations.

Frequently Asked Questions

Does an Affidavit of Heirship transfer title?

No, an Affidavit of Heirship does not transfer title. While Affidavits of Heirships can be considered evidence of a title, they are just presumptions of title. As the affidavit can only contain an opinion on matters such as the title, it does not automatically grant ownership of an asset to an heir.

For example, one person may have known the decedent for 30 years, while another may have only known them for 10. Due to this, both of them have different experiences and knowledge of the decedent, leading to conflicting testimonies about the heirship. For this reason, an Affidavit of Heirship cannot be used to transfer titles.

How much does an Affidavit of Heirship cost?

The cost of an Affidavit of Heirship depends on multiple factors. If you would like to use an attorney to help you draft the document and assist you in the subsequent court proceedings, it can easily cost you several thousand dollars.

Alternatively, you can get one of our free templates or use our document builder to help you create the document to your needs. You will still have to pay filing or handling fees to the relevant clerk offices, but it’s significantly cheaper than going through an attorney.

Does an Affidavit of Heirship need notarized?

An Affidavit of Heirship must be notarized before a notary public. The document must also contain a notary seal to be legally valid.

What are the consequences of not having an affidavit of heirship?

The consequences of not having an affidavit of heirship can vary depending on the specific circumstances and legal requirements of the jurisdiction involved. However, here are some potential consequences:

1. Uncertainty of Heirship: Without an affidavit of heirship, the heirs of a deceased person may face difficulties proving their legal right to inherit the deceased's assets. This can lead to disputes among family members or legal challenges regarding the distribution of the estate.
2. Delay in Estate Distribution: The absence of an affidavit of heirship may result in delays in the distribution of the deceased person's assets. Probate courts may require additional documentation or proceedings to determine the rightful heirs, which can prolong the probate process.
3. Increased Costs: Proving heirship through other means, such as formal probate proceedings or hiring attorneys to resolve disputes, can incur additional costs and expenses for the estate and its beneficiaries.
4. Risk of Property Loss: In some cases, the lack of clarity regarding heirship could result in the loss of property or assets if rightful heirs are unable to establish their claims in a timely manner.
5. Legal Challenges: Without a formal affidavit of heirship, individuals who believe they are entitled to a share of the deceased's estate may contest the distribution, leading to costly and time-consuming legal battles.

Where can I get an affidavit of heirship form?

An affidavit of heirship form can typically be obtained from various sources, including:

1. Legal Document Services: Many online legal document services offer templates and forms for various legal purposes, including affidavits of heirship. These services often allow you to customize the form to suit your specific situation.
2. Attorneys: Estate planning attorneys and probate lawyers can provide assistance in drafting an affidavit of heirship tailored to your needs. They can ensure that the document complies with relevant laws and accurately reflects the circumstances of the inheritance.
3. Court Websites: In some jurisdictions, probate courts may provide standardized forms and templates for affidavits of heirship on their official websites. You can check the website of the probate court in your area to see if such forms are available for download.
4. Public Libraries: Some public libraries may have legal reference sections or resources that include sample forms and templates for various legal documents, including affidavits of heirship.
5. Legal Aid Organizations: Nonprofit legal aid organizations may offer resources and assistance for individuals who need help with legal matters, including drafting affidavits of heirship.

Sample of Affidavit of Heirship