Affidavits of Heirship: Simplifying Estate Distribution Outside of Probate Court

The primary goal of estate planning is to provide for the smooth administration of a loved one’s estate after death. Passing away without an estate plan can be problematic, but the law provides avenues for families trying to get control of important assets. One of those options is an Affidavit of Heirship. If you are grieving the loss of a loved one who passed away, J Nichols Law, PLLC, can help you find a way forward.

What Is an Affidavit of Heirship?

An Affidavit of Heirship (also referred to as an Affidavit of Facts and Identification of Heirs) is a sworn legal document that allows the transfer of real property to the decedent’s legal heirs without going through the probate process. This may sound like a simple solution to a complex problem, but it is important to understand when it may be used and what is required to make it effective.

When an Affidavit of Heirship May Be Used

An Affidavit of Heirship can only be used in the following situations:

• The property left by the decedent was a piece of real estate. You cannot use an Affidavit of Heirship to transfer personal property such as a bank account.
• The decedent died without a will. If the decedent passes away with a will, their will determines how their property will be distributed. If the will provides for disposition to the decedent’s heirs, an Affidavit of Heirship can generally still be used.  If the will provides for other disposition, an Affidavit of Heirship cannot be used.
• There is no dispute or controversy over who will inherit the property. An Affidavit of Heirship can be challenged. If you anticipate a dispute over who will inherit the property, better options may be available.

An Affidavit of Heirship cannot be used if the original deed to the property directs how it will be distributed upon the decedent’s death. For example, if the decedent had a ladybird deed, the property will be transferred to the grantee(s) listed in the deed upon the decedent’s death.

Requirements of an Affidavit of Heirship

To transfer property, an Affidavit of Heirship must include the following information:

• The name of the decedent
• The address and legal description of the property to be transferred
• The name and address of the decedent’s spouse and surviving heirs
• That the decedent died without a will (or that the will provides for disposition to the heirs and attach a copy of the will)
• That the decedent died without any debts or unpaid taxes

The Affidavit must be signed in the presence of a Notary Public by two disinterested persons with personal knowledge of the decedent and their family. “Disinterested” means that the witnesses do not stand to inherit the property. In some situations, finding two disinterested witnesses can be challenging, and the family must therefore consider other options.

Contact J Nichols Law, PLLC, to Discuss Options for Probate

Probate can be a challenging process, especially if the decedent passes away without a will. If you have lost a loved one who died with or without a will, J Nichols Law can help you understand your options. Call us today at 409-257-7878 or complete our online contact form to schedule a consultation.