When someone dies without leaving a will, his property is distributed to his most immediate heirs according to the laws of intestate succession in his state of residence. In most states, spouses and children are first in line to inherit when a decedent dies intestate. However, before this can occur, the court must have documented proof of the identities of these individuals. This is where affidavits of heirship come in. They identify heirs. Additionally, with respect to some states and certain estates, they can also help you avoid probate altogether.
Accessing the Form
Some states, such as Texas, include suggestions for drafting affidavits of heirship in their legislative codes. You can follow this format to draft your own. If you live in a state that doesn’t include these guidelines in its statutes, visit the probate court in the county where the decedent died. The clerk might be able to give you a form or guide you to where you can locate a form. You may also be able to find one on your state’s website. Otherwise, you can download an affidavit from a legal-supply website.
After you access an appropriate affidavit that complies with your state's rules, you need at least one witness to complete and sign it. In most jurisdictions, only “disinterested” witnesses can do this. This means they have no relation at all to the decedent and are not in line to inherit by intestate succession. However, in some states, only family members can attest to heirship. Other states require more than one disinterested witness. Some states, such as Mississippi, require the signatures of both family members and witnesses. Check with your state's probate court clerk to be sure because laws vary from jurisdiction to jurisdiction. Your chosen witness or witnesses must have firsthand and intimate knowledge of your family tree.
Your witness must go into significant detail when filling out the affidavit. In most states, the format calls for a complete recitation of the decedent’s spouses, past and present. Your witness must usually state whether those marriages ended by death or divorce, the dates they ended, or if the decedent’s marriage was intact at the time he died. Your witness must include the names and birth dates of all the decedent’s children, whether they’re natural-born, adopted, illegitimate or deceased. She may also have to give the names of the children’s other parents. Most affidavits require similar information regarding the decedent’s grandchildren, parents, siblings, nieces and nephews. After supplying all this information, your witness must sign under oath that it is true; her signature must usually be notarized. Typically, she must also attest that she does not stand to inherit from the estate and explain her relationship to the decedent, such as how she knew him and for how long.
Where you file your completed affidavit depends on the nature of the decedent’s estate and state law. For example, in New York, you’re required to file it with the probate court. A judge will then use it to determine which of the decedent’s heirs will inherit from his intestate estate. In Texas, if the decedent left only real property, you can file your affidavit of heirship with the deed recorder in the county where the property is located. This will transfer ownership of the property to the heirs without the necessity of probate. In Mississippi, affidavits of heirship also transfer real estate after death and can avoid probate. Because state laws vary widely, check with an attorney or with the court to ensure you understand the filing requirements in your jurisdiction.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.