You can find a next-of-kin affidavit, also called an affidavit of heirship, on many legal aid websites and templates. The affidavit establishes heirs to property when a deceased person either has no will or the property is not required to go through probate court. Property types and values covered by an affidavit vary greatly among states even though the affidavit itself is universally similar.
A Legal Affidavit
A legal next-of-kin affidavit is a notarized document with several specific sections. The first section defines the place in which the document is executed along with the name and address of both the heir and the deceased. It also describes the relationship of the heir to the deceased.
The next section of the affidavit states which other living relatives exist and their relationship to the deceased. It also provides names, addresses and birthdays of each.
The last section is the affirmation, dated and sworn as truth in front of a notary public. Only original, stamped and signed affidavits are considered valid legal documents.
Types of Property Claims
Every state has different property rules for using a next-of-kin affidavit. Check with local state probate court office to determine what the property value cap is and whether real estate properties allow affidavit use. Most states don't allow real estate to transfer with only a next-of-kin affidavit. Mobile homes may be considered personal property or real property and will be subject to state rules.
Generally, smaller assets such as checking accounts or car title transfers use the affidavit when no probate proceedings are required. The affidavit is filed directly with the institution, such as a bank, transferring the asset ownership. Most states will not allow the use of an affidavit if probate court proceedings have already begun, since other claims to the assets may be found to exist.
Notice of Entitlement to Property
Because more than one person can claim to be the next-of-kin, states have set notification requirements to other possible claimants. Requirements include contacting all known potential claimants giving everyone an opportunity to start probate. Each state has a defined statutory limit to see if creditors or other heirs will begin probate proceedings. If no one starts a claim and proper time has elapsed, an heir can proceed with the affidavit to claim the estate.
Any debt owed by the deceased, including state medical and welfare services, must be repaid before heirs get any part of the asset. This is true whether or not a will exists. Thus, debts like medical payments made by public aid must be repaid first. Remaining assets then go to the next-of-kin.
What to Do With the Affidavit
Once you have the completed affidavit, go to the institution holding the asset, such as a bank or brokerage firm. To withdraw or transfer funds, you need the affidavit, death certificate and your valid identification. For property such as a car, take the affidavit and death certificate to the Department of Motor Vehicles to transfer title. Transferring real estate with the affidavit is recorded at the county recorder's office. No matter where the property is located, the affidavit, death certificate and your identification are the key components to claim the property.
Read More: What Is An Affidavit of Title?