An affidavit is a written statement that is signed under oath and typically witnessed by a third party who has no interest in the case. Affidavits can be used as evidence in court. An affidavit of heirship is a legal document that establishes inheritance rights to property owned by a family member that has died, typically, without a last will and testament

The affidavit of heirship explains the relationship of the deceased family member to the surviving heirs. This document can be used to declare ownership of the decedent’s property by the surviving family members.

When is an Affidavit of Heirship Needed?

As noted above, an affidavit of heirship is often used when someone dies intestate — without a will. After a person dies, especially if they have not written a will, a probate court will usually review and determine how the decedent’s debts will be paid off and how any remaining property will be distributed among their heirs. The probate court process can be lengthy and often expensive.

An affidavit of heirship can expedite the probate process and in some cases eliminate it. The information provided in an affidavit of heirship can assist the probate court in determining how to properly distribute the property of the deceased.

In some instances, even if there is a valid will, the heirs of a decedent may decide to use an affidavit of heirship instead of proceeding with authenticating a will via the probate court. If all heirs agree to move forward with an affidavit of heirship and the affidavit mirrors the intent of the decedent’s wishes documented in their last will and testament, then the probate court will typically allow the family to proceed with the affidavit. 

By doing this, the heirs are able to transfer title from the decedent’s name in their own name in a shorter amount of time than having to wait for the will to go through the probate court. 

What is Included in an Affidavit of Heirship?

Affidavits of Heirship can vary from state-to-state. In general, an affidavit of heirship includes the following:

  • Detailed contact information (address, phone number, etc.) regarding the affiant — an affiant is the heir that is completing the affidavit of heirship. The contact information requested may also include past addresses.
  • Detailed information regarding the deceased. This may include: 
    • Last and former addresses of residence, 
    • Names and contact information of spouse/domestic partner at time of death as well as any former spouses or domestic partners, and 
    • The names and contact information of all known living and deceased heirs.
  • Specifics listing how the deceased is related to the heir submitting the affidavit of heirship.
  • Signatures of the heir as well as the signatures of a neutral witness (or witnesses, depending on the state law requirements) to the signing. The witness is often a notary public.

Who Can Draft an Affidavit of Heirship?

It is important to note that each state has different instructions, rules and laws surrounding the proper execution of an affidavit of heirship. All the components of the affidavit must be included in order to be accepted as valid by the state government. 

Hiring an attorney, familiar with affidavits of heirship, is a good option to draft this important evidentiary document. An attorney that is familiar with the state and local rules regarding the proper execution of the affidavit will make the process effective and efficient.

Most states allow for individuals to draft their own affidavit of heirship or use a template. However, as noted above, it is very important to make sure all the state-specific requirements regarding the affidavit of heirship are met and followed. If the affidavit of heirship is not properly completed, then it may be considered invalid and may not be considered a proper proof of heirship.

No matter who drafts the actual affidavit, it must be witnessed and signed by a neutral party. Usually the witness is a notary public. States vary on how many witnesses must attest to the affiant’s signature. It is imperative to determine the state specific witness requirements for affidavits of heirship.

Should I Speak to a Wills, Trusts and Estates Attorney About an Affidavit of Heirship?

The probate court process can be time consuming and overwhelming, it is important to speak with a knowledgeable and experienced attorney that can navigate the system with ease. Wills, trusts and estates lawyers assist individuals with making preparations on how to distribute property after their death. 

While it is always a good idea to plan in advance and document one’s final wishes, unfortunately, it is not always possible to make an estate plan and draft a will. If a loved one passes without a will, an experienced wills, trusts and estates attorney can aid families with the affidavit of heirship process. A wills, trusts and estates attorney is prepared to help grieving family members determine the best course of action to take after a loved one has passed.