When to Use an Affidavit of Heirship
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When an individual dies without leaving a will, the attorney in charge of their estate must prove heirship with an affidavit or declaration of heirship. An affidavit of heirship is a sworn statement that heirs can use to establish property ownership. This document is most commonly prepared by an attorney, or an heir search firm on the attorney’s behalf, to ensure compliance with state-specific probate codes.
However, not every case will require an affidavit of heirship.
When can an affidavit or declaration of heirship be used?
Generally, when a property owner dies intestate, their heirs must open a probate court case so that the title to the decedent’s property can pass to them. In some cases, though, heirs can avoid probate and its associated time and cost by using an affidavit of heirship.
Affidavits or declarations of heirship can be a good option if all of the following are true:
- The decedent died without a will
- Someone can be identified as the decedent’s lawful heir
- That person wants to take possession of the estate without going through probate
- All heirs have agreed on the estate’s distribution
- A third party can verify the heir’s right to the estate
It’s important to note that affidavits of heirship are not always the best choice for every situation, though, and that laws vary from state to state.
Who can sign an affidavit of heirship?
Again, these requirements vary from state to state.
Texas, for example, requires that two “disinterested witnesses” sign the affidavit. In this case, “disinterested” means someone who is knowledgeable about the decedent and their family history but does not stand to benefit financially from the estate. These witnesses can include people like bankers, neighbors, lawyers, or family friends.
Are affidavits of heirship final, or can they be contested?
Unlike formal adjudications, affidavits of heirship do not conclusively determine the heirs of an estate. Instead, they create a presumption that the facts as stated are correct. Family lineages established in an affidavit of heirship can be contested, especially if a legal heir has been omitted.
In these cases, an omitted heir can dispute an affidavit of heirship by filing a correction affidavit that presents evidence of their relationship to the decedent.
Do you need help locating heirs for an affidavit of heirship?
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