What is an Affidavit of Heirship?
An Affidavit of Heirship is not a formal adjudication like probate is. Rather, it is an affidavit that summarizes the deceased person’s family history and the identity of their heirs. Affidavits recorded in the public records of any counties in which the decedent owned property create a rebuttable presumption that the property has passed to the heirs.
When Can Heirs Consider an Affidavit of Heirship?
When someone dies owning property evidenced by title, heirs cannot sell or transfer property until the decedent’s name is removed from the title. Probate records become a link in the chain of title, demonstrating that the decedent’s property has passed to someone else.
But in cases where the decedent’s only asset is real estate, and there are no outstanding debts besides those secured by real estate, full probate may not be necessary. In some cases, an Affidavit of Heirship can be a cheaper and less time-consuming alternative to probate.
Why Not Probate?
The primary reason heirs opt for Affidavits of Heirship instead of full probate is that it is a cheaper alternative. Another reason is that more than four years have passed since the date of death, and probate may not be an available option.
What are the Disadvantages of Affidavits of Heirship?
While it is a cheaper alternative to a judicial determination of heirship, it does have some disadvantages:
- A judicial determination conclusively determines the heirs. Affidavits of heirship just create a presumption that the facts contained in the affidavit are correct. A challenger can rebut the presumption by introducing controverting testimony.
- The affidavit does not affect the rights of an omitted heir or a creditor of the decedent.
- Entities such as financial institutions may not recognize an affidavit of heirship as a valid transfer of title. It’s always best to check with such entities before choosing how to proceed.
- Also, the affidavit does not become prima facie evidence of the facts contained in it until it has been on record for 5 years.
Who Can Sign the Affidavit?
Heirs should not sign Affidavits of Heirship. Rather, the individuals who sign the affidavits (the affiant) should be persons who are familiar with the decedent’s family history and stands nothing to gain from the estate.
An affidavit of heirship is not appropriate for every situation. An attorney can help you determine whether an affidavit of heirship is appropriate for your unique circumstances.
This article was originally published on March 22, 2021 and updated on July 30, 2023.