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How to Create an Affidavit of Heirship

An affidavit of heirship is needed to transfer a deceased person’s interest in real or personal property to his or her heirs when the decedent dies without leaving a last will and testament or without disposing of all of his or her property in a will. This is the most common use for the affidavit, but you can also use it simply to name the decedent's heirs for a court. The information below explains how to go about creating the form.

Party Information

Begin by entering in the names and addresses of the parties involved. The "Affiant" is the person swearing to the facts stated in the document. The Affiant cannot be an heir of the Decedent because it would be a conflict of interest, meaning the Affiant might then have a reason to lie about the Decedent’s true heirs. The "Decedent" is the person who has passed away and whose heirs are being named in the document. Then describe the nature of the parties' relationship and the dates when the parties knew each other.

Probate Court

If the will was not admitted to probate, skip this section. If the Decedent left a will and it was admitted to probate, next enter in the relevant details related to the probate court. Probate court is the court that administers the Decedent's will and disburses his or her property to the intended beneficiaries. The case number and other information requested can usually be located on any of the formal probate court documents.

Appointed Representative

You will then indicate if an administrator or personal representative has been appointed to help administer the Decedent's estate. This question applies whether or not the Decedent left a will since these may be court appointed if not already appointed in a will. If one has been appointed, enter his or her name and address.

Spouses, Children, and Other Heirs

Next, you will have the option to identify the Decedent's spouses, children, and other heirs. Generally, heirs only include:

  • spouses,
  • registered domestic partners, and
  • blood relatives.

Friends of the Decedent are typically not heirs; however, if the Decedent named a friend to inherit property before death, then you can include the friend and try to get the court to accept them. It's best to be as thorough as possible here, but, if the Decedent has a lot of heirs or you don't have all of their names and addresses, then just enter the ones necessary for your purpose in using this affidavit.

Real Estate and Personal Property

The Real Estate and Personal Property sections are used if you intend to use this affidavit to transfer the property to the Decedent's heirs. If the Decedent isn’t transferring these assets and you’re only trying to establish the heirs, then you can skip these sections.

If you are including multiple pieces of real estate, they must all be in the same county. If not all in the same county, you will need to use a separate affidavit for real estate located in a different county. You will be asked to specify a complete legal description of the property. This is usually called a lot and block or metes and bounds description.

If you do not have the legal property description already, you can try:

  • previously recorded deeds,
  • your county Register or Recorder of Deeds (often online),
  • tax assessments,
  • websites such as Zillow.com,
  • your mortgage contract,
  • your land title, or
  • ask a licensed real estate attorney for help.

End each additional legal description with a period.

With the personal property, be as specific as possible in identifying the exact property that you are referring to. For example, if the item is a car, then include the year, make, model, license plate, and VIN. If you are identifying cash, stock, or another intangible asset, be sure to specify the account number where the asset is being held.

Debts and Liabilities

The last few sections relate to the Decedent's unpaid debts and liabilities. Again, if you don't know the answers, just answer to the best of your knowledge or skip these items.

Attachments

Attach the following papers, if applicable:

  • If any heirs of the Decedent have died since his or her death, attach separate proof of heirship as to each.
  • If the Decedent left a will, attach a certified copy.
  • If an executor or administrator has been appointed for the estate of Decedent, attach a certificate of appointment from the Court that made the appointment.
  • If an administration of the Decedent's estate has been completed and final order or decree of distribution has been rendered, attach a certified copy of such order or decree.

Execution

To execute the affidavit, the Affiant will need to sign it in front of a notary public. If you don't know a notary, you can find them at banks and similar professional offices open to the public.


Filing

Once executed, the affidavit of heirship will need to be filed with the appropriate court. This is usually a very straightforward process, and, if you are unsure how to do this, you can always call the court and an administrator will explain the process to you. If you are naming real estate to be transferred in the affidavit, then the affidavit will need to be filed with the appropriate land records office in the county where the land is located (usually called the County Recorder's Office).

Call the Recorder's Office in Advance

As rules vary greatly from county to county, it is recommended that you call the recorder's office ahead of time to find out if they have any specific local filing requirements.

How LegalNature Can Help You with Your Legal Form Needs

LegalNature can help you with all of your personal legal form needs. Let us help you get started today. Click here to create your affidavit of heirship forms now.

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