Key Takeaways

  • An affidavit of heirship may be used when a deceased individual passes away without leaving a will. It saves heirs the inconvenience of probate.

  • The affidavit must be notarized and signed by two non-interested parties who can confirm the deceased person’s wishes and relationship to the beneficiaries.

  • It is generally issued to transfer real estate but can also cover other kinds of assets.

  • An affidavit of heirship is faster, more confidential, and cheaper than probate.

  • Post a job on UpCounsel to find a lawyer to help you with affidavits of heirship, wills, and other estate planning needs.

If someone close to you dies without a will, distributing their property and affairs is often challenging. An affidavit of heirship is a straightforward remedy that may be applicable, and it comes with certain advantages over probate. 

In this article, we’ll discuss using an affidavit of heirship, who it applies to, what you can gain from it, and pitfalls to avoid. 

What Is an Affidavit of Heirship?

An affidavit of heirship is a legal form that declares the heirs of an intestate or person who has died without a will. 

If there is no will, an affidavit of heirship allows a family member to pass the deceased’s assets into their name in lieu of court-mandated probate.

The affidavit is typically witnessed by individuals familiar with the family's history, usually a friend or a relative who is not the intended inheritor. 

When finished, it is notarized and filed at a local office, such as the county clerk or court. 

According to intestacy statutes in that state, the affidavit represents legal evidence of the named heirs. Usually, the affidavit of heirship is used to transfer real estate, though other types of assets may also be subject to the laws of your state. 

Using this document, heirs streamline the property transfer and elude the sometimes painful probate formalities. However, the affidavit might be burdened and enforced differently because of state law.

Who Can Use an Affidavit of Heirship?

An affidavit of heirship is used by proper heirs of the deceased or family members entitled to property under the state’s intestacy system.  

The criteria for being an heir vary slightly from state to state but tend to be fairly universal. 

  • Parents and Kids: In most states, a deceased person’s spouse and children are the primary heirs. They tend to claim the estate first.

  • Parent and Siblings: If the deceased was unmarried or had no children, parents and siblings could be considered legal heirs.

  • Extended Family: If no immediate family exists, more distant relatives (such as nieces, nephews, or cousins) may be recognized as lawful heirs under the state's intestacy laws. 

To be an heir, there are some basic criteria you must satisfy: 

  • The deceased individual must have passed away without a will.

  • The inheritors must have a tangible and legally recognized connection with the person killed.

  • The bequest shouldn’t be overly reliant on debts (sometimes, creditors might take priority over heirs).

  • The property should not be a source of significant conflict between potential successors regarding how it is divided.

  • It is typically a more suitable route when no rival heirs have arisen, and the will is relatively straightforward.

How to File an Affidavit of Heirship

Filing an affidavit of heirship is a multi-step process.  

Below are the steps for filing the affidavit.

1. Gather Information

You’ll start by gathering all the information you’ll need for the affidavit of heirship. 

This includes: 

  • Full name of deceased person

  • Date of their death

  • Marital status of the deceased person

  • Any known heirs 

You will also need to provide information about the property or estate being transferred. This typically means listing the property, vehicles, or personal belongings that will be transferred with the affidavit.

2. Fill Out the Affidavit

Next, you will fill out the affidavit to prepare it for filing and notarizing. It must include information about the deceased, a clause stating there is no valid will, and a statement of all the heirs’ names and their ties to the deceased.  

Be sure to include whether the estate is subject to existing obligations or liabilities.

3. Get Witnesses

You’ll need two independent witnesses who are not heirs of the estate to sign the affidavit. These witnesses need to have had a personal relationship with the deceased person and knowledge of their background. They will need to testify that they believe what is in the affidavit.

4. Have the Affidavit Notarized

The affidavit must be notarized after the witnesses have testified to the document. The act will be witnessed by a notary public who will sign it (voluntarily and according to the state’s rules).

5. Sign the Affidavit

The notarized affidavit must be submitted to the county clerk or court where the property is located. Depending on the state, you might need to file additional papers at a deed records office to transfer property.

Benefits of Using an Affidavit of Heirship

Probate offers certain advantages over an affidavit of heirship that can make it a more appealing option.

1. Avoiding Probate

Probate is the legal proceeding in which a court oversees the disposition of the deceased’s property. Probate may be necessary if there is a will or if the estate is vast and convoluted, but it can be slow and costly.  

An affidavit of heirship makes transferring property easier and faster. However, remember this is only an option if the deceased person dies without a will.

2. Less Expensive

Probate is costly for beneficiaries due to court costs, lawyers, and appraisal fees. However, an affidavit of heirship, which is less formal and does not always require the assistance of a lawyer, can substantially reduce these costs.

3. Privacy

Probate proceedings are public records. The other option, an affidavit of heirship, is much more confidential; details of the estate and how assets were distributed are not released.

4. Faster Transfer of Property

When a property is transferred to probate, it can be months or even years before the case is settled, especially if there are disagreements among the beneficiaries or other complications.  

With an affidavit of heirship, this process can be resolved quickly, and the assets passed along, usually in a matter of weeks after all paperwork is filed.

Affidavit of Heirship vs Probate: What’s the Difference?

Affidavit of heirship and probate are two ways of transferring a deceased person’s property, though they are different processes with vastly different scopes. 

  • Probate: A court-ordered action in which a person’s will (if they have one) is validated, debts are settled, and property is divided. It’s sometimes required for large, complicated estates and offers legal representation to see that creditors are addressed and the estate distributed in accordance with the will or state law.

  • Affidavit of Heirship: This form facilitates property transfers outside of a lawsuit. It’s usually utilized when the will is simple, no will exists, and every heir agrees. It applies primarily to property but can be carried over to other assets in certain states.

How to Transfer Property to a Lawful Heir

When it comes to assigning property to a valid heir through an affidavit of heirship, this procedure generally applies: 

  • Filling the Affidavit: After filling out the affidavit, submit it to the court or county clerk’s office. This initiates the legal transfer of property.

  • Debt Settlement: Outstanding debts, including a mortgage or a lien, must be settled before the property is transferred. It is best to settle debts like mortgages or liens before you move into the home.

  • Transfer of Title: After the affidavit is filed, the title to the property passes to the legitimate inheritor. This step is necessary to ensure the accuracy of ownership records. 

Depending on your state, you may also have to submit an official death certificate or pay taxes.

Common Mistakes When Filing an Affidavit of Heirship

While an affidavit of heirship can streamline property transfer, any errors will complicate or delay the process.

Here are a few of the common mistakes to avoid:

  • False Information: Enter all information on the deceased and their heirs. There can be disagreements or dismissals by the court for even a small mistake.

  • Improper Witnesses: Make sure your witnesses are impartial and have no interest in the outcome of the affidavit. Using an unqualified witness may overturn the document.

  • Missing Notarization: Notarization is an important step in the process. Failure to do so will make the affidavit legally invalid.

State-Specific Requirements for an Affidavit of Heirship

As previously mentioned, the process and rules for an affidavit are relatively uniform, but there are a few state-specific requirements to consider. 

Texas and Arkansas are two states with specific laws to consider: 

Texas: An affidavit of heirship is commonly used for real estate in Texas

 where there is no will or when no probate is initiated within four years of the deceased person’s death.  

This document needs to include the deceased's family, debts, and assets in great detail. Two unbiased witnesses familiar with the family lineage must also sign it. The affidavit is completed and presented to the county clerk where the property lies. 

Arkansas: Arkansas is similarly organized, except it requires additional documentation if the estate is worth more than a certain amount. Sometimes, heirs may use a small-estate affidavit for estates valued below a certain amount.  

Arkansas also requires the affidavit to be notarized and lodged with the county records office as in other states.

Get Legal Guidance for Affidavit of Heirship

If someone passes away without a will, the legal process of dividing their property can be overwhelming. If applicable, the affidavit of heirship could be a more direct and affordable option than probate, but it is important to ensure the transaction is handled appropriately.  

Whether you need help preparing the affidavit, filling out the state forms, or avoiding conflicts between heirs, an estate attorney will make it as easy as possible. 

Post a job on UpCounsel for individual legal assistance to find an experienced lawyer in your state. You’ll have access to seasoned attorneys to help navigate the affidavit of heirship and get the assets out in one smooth and lawful transfer. 

Frequently Asked Questions

What Are The Two Types Of Heirs? 

The two primary types of heirs are legal heirs or beneficiaries:

  1. Legal Heirs: Family members who inherit based on state intestacy laws.

  2. Beneficiaries: People designated in a will or trust to receive certain assets.

Is A Daughter-In-Law Considered An Heir? 

In most states, a daughter-in-law does not have outright legal rights to an inheritance from her spouse’s side of the family. However, she can be named as a beneficiary in a will or trust.