So, your parent or relative has died without a last will and testament, leaving you as sole heir or as joint heir with other relatives. If no estate planning provisions were made for property to pass into your name immediately upon death, then the laws of your state as well as the desires and wishes of other heirs, may influence how -- or if you acquire full ownership rights in the decedent’s property.
Small Estates Affidavit
Some states provide for the transfer of estate property by the filing of a small estates affidavit. This small estates process is often used to transfer a vehicle title or other personal property from the decedent’s name into the name of the legal recipient or recipients. The estate will have to meet certain criteria that state law has established to qualify, including a minimal estate value, with certain states requiring that no real estate is involved. A surviving spouse, child or other relative who is entitled to the decedent's property is generally required to file the affidavit. Some states require only that the completed appropriate affidavit be presented to the holder of personal property of the deceased, while others require the affidavit be filed with the court. Complexity of the small estate process varies from state to state. It may be necessary to familiarize yourself with the laws in the state of residence where the deceased lived.
Intestate Estate Action
If the estate included real estate or other assets of substantial value, or if your state does not provide for the small estates process, a full administration may be required. The state law in which real property is located will determine who is entitled to inherit the property of a deceased who died intestate or without a will. A person entitled to receive property of a deceased will generally petition the probate court for letters of administration. If you are the administrator, these letters will authorize you to administer or manage the assets of the decedent, including transferring property into the name of the rightful heirs, upon order or authorization of the court.
If you are the sole heir or if all heirs are in agreement regarding the disposition of the decedent’s real property, particularly if a few years have passed since death, some states may provide for the filing of heirship affidavits with the probate court which will state the names of all heirs at law of the deceased. Generally, affidavits will be required from at least two people who are not interested in the outcome of the estate, but who are familiar with the family of the deceased. Once heirship has been established in this manner, the remaining heirs, provided they are legally able and willing to do so, may execute a deed to you conveying all their interest in the property. If you are the sole heir, the property will generally have passed to you upon the death of the decedent, subject to debts of the estate. In this instance, heirship affidavits filed in the real property records for the county where the property is located will put the public on notice as to your ownership of the property.
Court Action for Division
Depending on the circumstances or if a dispute arises as to property ownership, a court action may be required to divide or clarify ownership of the decedent’s property. If there were mistakes in prior deeds so that the property cannot be accurately described or if there are previously undisclosed or illegitimate heirs who come forward to claim a share, a court action may be necessary to determine ownership of the property.
- The Judicial Branch of Arizona, Maricopa County Superior Court: Small Estates Affidavit
- Superior Court of California, County of Los Angeles: Transfer of Small Estates Without Probate
- New Castle County, Delaware: Small Estates – Register of Wills
- Marion County Circuit Court, Oregon Judicial Department: Instructions for Filing Small Estates
- MyStateWill.com: Which state's intestacy laws apply at death?
- Law Office of Robert H. Glorch: Illinois Probate
- Washington State Legislature: RCW 11.28.110 , Application for Letters of Administration or Adjudication of Intestacy and Heirship.
- Fortenberry Legal Probate Attorneys: Mississippi Heirship Affidavit
- LoneStarLandLaw.com: Affidavits of Heirship in Texas Intestacy Cases
- South Dakota Legislature: South Dakota Codified Laws, 21-39-1
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