What is an Affidavit of Heirship?
There are many people out there who do not have wills. If that person dies it’s called intestate. No one knows what he/she wanted to happen to all of the property and how it is supposed to be distributed to the family members and/or friends. If you die, and you have no will, the state that you live in has intestacy laws that will define who will receive any property that is left behind. In most states, the entire estate will go to the deceased person’s family member. The order will be arranged according to the relationship to the decedent. The affidavit is used to identify those members.
An affidavit must be filled out and signed in front of witnesses and notarized. In some states, if there is a will and an heir was named, but that heir has preceded the deceased person in death then the heir’s descendants may be required to be named in the affidavit.
Affidavit as a Spouse
If you have the unfortunate experience of losing your spouse and there is no will an affidavit will be used to determine who will receive the decedent’s property. If a man dies without a will and he owns several real estate ventures as rental properties, his wife can file an affidavit to be able to sell the property, if she so chooses to do so, without the intervention of the court.
Why Would an Affidavit be Required if There’s a Will?
Even if your partner had a will when they passed away, an affidavit can be utilized if probate is not involved and all of the involved parties agree not to submit the will to probate. Most states will automatically rule that the decedent’s property will go to the spouse as long as all of the children are also legally the children of the surviving spouse. The purpose of an affidavit is to produce concrete, incontestable proof of family lineage.
The affidavit must normally be signed by two witnesses who knew the decedent but is not a family member. The witnesses need to indicate that they knew the decedent. They also must know where and when he/she died. Also, the name of the spouse along with their children should be acknowledged. Both witnesses have to also attest that there were no outstanding debts owed to them by the decedent at the time of death and that neither of them stands to gain anything financially from the estate. The affidavit then has to be signed in front of a notary public and notarized.
How to File an Affidavit
An affidavit has to be filed at the deeds records office located in the county where the decedent’s estate is. It must be recorded after being filed. Once it is recorded it becomes an official chain of entitlement to the decedent’s property beginning with the spouse. If the Affidavit has been properly filed and recorded then it is usually enough for allowance of the sale of any of the deceases person’s estate by the heir(s).
State Requirements for an Affidavit
Probate code differs from state to state and this is what dictates the laws regarding the heirship affidavit. You can get the state-specific form for the affidavit at the record clerk’s office or the tax assessor’s office in the county where the deceased family member’s estate is located. While you can obtain forms from many internet websites, and you can definitely file an affidavit on your own, if you are unsure of the probate laws in your state it is advisable to contact a probate attorney if you are not familiar with the probate codes in your state.
Size of the Estate Matters
Keep in mind that the size of the estate matters. If the estate is small enough, Probate will not need to be involved. The property that is left behind has to be less than a ceiling that varies according to what state you live in. If the estate amount is above your state’s ceiling then you will. It will have to go to court. There are a few other restrictions as far as the affidavit is concerned, some of them are:
- If probate procedures have already begun you cannot use the affidavit in most cases.
- The majority of states do not allow an Affidavit of Heirship to be utilized to transfer real estate. Some states though will allow it, but because it’s public record it’s imperative that it’s filed and recorded.
How to Collect Your Property?
The inheritors as set out from the Affidavit can use it to collect the proper that has been deemed as theirs whether or not there is a will. The affidavit should state whether the family is inheriting under the terms of a will that was left or under their state’s law. If there’s no valid will, your state should have what’s called the “Intestate succession” law that determines who gets what. The formula for figuring this out varies from state to state. Generally, though, if there is a surviving spouse and children they inherit everything. If there’s no wife or children then the parents of the decedent will be named first followed by the deceases siblings and their children.
The process of transferring any property inherited is the responsibility of the new owner. They should initiate the entire process, whether it be a house, car, boat, etc. There is quite often a waiting period in most states which ranges anywhere from 30-45 days after the death before anyone can call to claim the ownership of the property.
When taking ownership of an inherited property, the heir will have to present the affidavit of heirship along with a copy of the death certificate to the representative who has possession of the property. Some institutions will ask that if a will exists, that you bring that along with you. The affidavit will be analyzed and judged as to whether it seems honest and forthright. The representative you are dealing with will then, as a person or institution trusting they are legally allowed to do so, turn over the property without investigating the truth of anything on the document. They simply will check the notary stamp and the names. It should not be a time-consuming process and you should be in possession of your inherited property in a timely manner.