Free Affidavit of Heirship

An Affidavit of Heirship may be necessary to fast-track or enable the inheritance process by identifying the heirs of a decedent.

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When someone dies and leaves behind heirs, the heirs may be entitled to a portion of the decedent's property in probate. To avoid probate, some of the decedent's property may require identifying heirs in writing through the use of an Affidavit of Heirship. This is particularly important when someone passes without an expressly drafted will or written instructions about their estate administration.

Essentially, the Affidavit of Inheritance speeds up the process of inheritance by avoiding probate. As a matter of record, it states that the affiant or affiants are the rightful heirs of the decedent.

What Is an Affidavit of Heirship?

An Affidavit of Heirship is a sworn oath the heirs of a deceased person can establish ownership of the decedent's real properties. It's most commonly used when someone passes without a will and owns real properties that may be contested in a probate process. The Affidavit of Heirship states who the decedent's heirs are and can serve to sidestep the probate process altogether.

Additionally, when someone dies with a will but does not go through probate within a period prescribed by their state laws, an Affidavit of Heirship may have to be used to claim ownership of his or her real property. The transfer of real properties to an heir may be described in the will, but the heir's identity is not specified.

Other Names for Affidavit of Heirship

Depending on your state, an Affidavit of Heirship may also be known as:

  • Heir Affidavit

  • Statement of Heirship

  • Heirship Affidavit

Who Needs an Affidavit of Heirship

One of the most common applications of an Affidavit of Heirship is by the spouse of a deceased person who is not expressly mentioned in a real estate deed. The spouse can use an Affidavit of Heirship to claim ownership of their joint residence as the rightful heir to the property. The Affidavit of Heirship is also used for other real property distribution and, in some cases, personal properties.

However, it's important to note that while an Affidavit of Heirship benefits an heir of the decedent, it's filed by a disinterested third party. In other words, someone who will not benefit from the estate but is familiar with the decedent's heirs files the affidavit.

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How to Create an Affidavit of Heirship with 360 Legal Forms

To avoid probate, the details in your Affidavit of Heirship need to be clearly described and in a format that's valid with state regulations. With our proprietary form generator, a few necessary details about the decedent, their property, and the affiant are enough to generate a document that complies with the regulations in your jurisdiction.

Let 360 Legal Forms help with our extensive library of attorney-vetted legal forms. The process is fast and easy. All you have to do is fill out our easy-to-understand questionnaire. Once complete, simply download your form as a PDF or Word document from your secure online account.

What Information Will I Need to Create an Affidavit of Heirship

To create your document, please provide:

  • Governing State: The state whose laws govern this Affidavit of Heirship.

  • Execution Details: The date, state, and county where the affidavit is being executed. 

  • Affiant Information: The legal name and address of the person who is completing the Affidavit of Heirship.

  • Heir Information: The legal name and address of the person conducting the affidavit to the rightful heir to the property.

  • Decedent Information: The legal name and identifying information about the person who died.

  • Real Estate and Personal Property: The identification, in detail, of the property being transferred to the heir or heirs in this affidavit. For real property, you may need to include a legal description that aligns with the deed description and other records of the property.

  • Debts and Liabilities: Include any liabilities and debts held by the decedent, if known.

  • Affiant's Relation to Decedent and Heirs: Describe the affiant's role in connection to the decedent and the heirs in the affidavit.

  • Attachments: Any additional documents that serve as evidence to support the affidavit.

Affidavit of Heirship Terms

  • Depose: The action of stating something under oath, especially in writing, in a legal proceeding.

  • Probate: The legal process after someone dies involving the distribution of assets, the payments of debts, and the execution of the will of the deceased.

  • Real Property: Any land, structure, or object attached to that land, including buildings, trees, and the rights to any mineral deposits in the land.

  • Bequeath: To leave someone personal properties in a written will.

  • Affidavit: A legal document, usually sworn, used in a court as evidence.

Affidavit of Heirship Signing Requirements

An Affidavit of Domicile must be signed by an affiant who is a disinterested third party in the inheritance process to be legally enforceable. The heirs themselves cannot execute an Affidavit of Heirship.

Moreover, an Affidavit of Heirship must be witnessed by a notary public and have the signatures notarized.

What to Do with Your Affidavit of Heirship

Once it is signed, keep a copy of the Affidavit of Heirship for your personal records. Depending on the affidavit's purpose, you may need to file an executed copy with the recorder's office where the property is located.

For instance, if it is transferring a plot of land, it may need to be filed with the county recorder's office where the land is located. Your county clerk will be able to provide more information about the filing requirements.

Frequently Asked Questions

In the simplest sense, real property refers to land and any property attached to that land. That includes any legal manmade additions to that land. Personal property is anything subject to ownership that can be moved freely from one place to another. Personal properties include things such as money, jewelry, and furniture.

A will cannot be made retroactively after a person’s death. However, several methods can be used to avoid probate before a person’s death. These include using a living trust, naming beneficiaries on bank accounts so they can access the funds after a person’s passing, and holding property jointly so there’s no need to inherit.

Both documents serve the purpose of stating in writing facts that are true to the best of the affiant’s knowledge. However, an affidavit is typically used in the context of court matters. A statutory declaration is mostly used outside of court to satisfy legal or regulatory requirements.

Without an Affidavit of Heirship, the heirs of the decedent will have to go through the probate court system to distribute the properties. The probate can be extensive and take several months to complete, during which time the purported heirs cannot sell the property, access bank accounts and other funds of the deceased, or distribute the assets in any way.