Affidavit of Heirship: Purpose, What's Included
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When someone passes away with a valid will, each heir’s inheritance is determined in terms of the will. When a person passes away without a will, however, it can be challenging to determine who the decedent’s heirs are.
In this case, the affidavit of heirship plays a vital role. It helps to establish who the decedent’s heirs are and how their assets should be distributed. But how does the affidavit of heirship work and what information should it contain.
In this post, we’ll look at the affidavit of heirship in more detail.
What is an Affidavit of Heirship?
An affidavit is a written statement given under oath and verified, usually by a notary, that provides facts that can be used as evidence in court.
So, an affidavit of heirship is an affidavit where the person providing the affidavit, the affiant, provides detailed information about a deceased person's heirs – or the people who inherit the deceased person’s estate. In this affidavit, the affiant must include the name, age, and address of all the deceased's living relatives and if a relative has passed away, the affiant must provide the name and the date of death of that relative.
Here is an article about affidavits of heirship.
Purpose of an Affidavit of Heirship
When someone passes away without a will, their heirs may need to open a probate court case in order for the title of the properties in the estate to pass to them. Although the requirements vary depending on the county that the probate court is in, an heirship affidavit should be filed in every probate case to provide the court with the necessary information on the decedent's heirs.
These affidavits are generally used when a person dies without a will but only has real property, personal property or had a small estate. It is important to note that, in some states like California, a small estate affidavit is used rather than an affidavit of heirship.
By providing this information, the heirship affidavit helps the court to designate the assets of the decedent by providing the age and location of a decedent’s heirs.
An affidavit of heirship is a good option to handle an interstate state when the:
- Heirs can identify themselves as the decedent’s lawful heirs.
- They want to take possession of the estate without going through the entire probate process.
- The heirs have agreed on how the estate should be distributed amongst them.
- There is a third party who can verify the heirs’ rights to the deceased's estate.
Ultimately, the affidavit of heirship speeds up the probate process by providing all the relevant details of the relatives, and heirs can avoid the time and expense necessary to handle the intestate estate.
Here is an article about the purpose of an affidavit of heirship.
What’s Included In An Affidavit of Heirship
The affidavit of heirship must contain the following information:
- The details of the affiant . The affiant is the person swearing to the facts in the affidavit. It's important to note that the affiant can't be an heir of the decedent as this would result in a conflict of interest. In other words, when the affiant is an heir of the decedent, it might give the affiant reason to lie in the affidavit.
- The decedent’s details . The decedent is the person who has passed away without a will. It's this person’s heir’s that is named in the document by the affiant.
- The decedent’s marital status . If the decedent was married, it's necessary to provide full details of every spouse, when the marriage was terminated, and why the marriage was terminated.
-
Details of the decedent’s children
. Full details need to be given about the total number of children the decedent had, including both children born to the decedent and those who were adopted. For every child, full details need to be provided, which include:
- Name of the child
- Date of birth of the child
- Name of the child's other parent, and the
- Child's address.
If the child is already deceased, the date of death should be provided.
- Details of the decedent’s other relatives . If the decedent has no living spouses, children, or grandchildren, details need to be given about the decedent's father, mother, brothers, or sisters. If there are none, the names of any other living relatives. It’s worth noting that friends of the decedent are typically not heirs, but if the decedent named a friend to inherit property, then the details of such a friend can be included.
- Details of the decedent’s real estate and other property . If there is any property that needs to be transferred to the decedent’s heirs, full details of the properties should be given. Likewise, if the decedent isn't transferring any properties or assets to the hairs, this information is not necessary.
Apart from the information above, information can also be provided about the decedent’s debts and liabilities.
The affidavit of heirship, once completed, must be signed and a witness must witness the signature. It's also necessary that a notary public witness the signature of the affidavit. Once the affidavit is completed, signed, and notarized, it needs to be filed with the appropriate court or county recorder's office depending on whether real estate is involved.
Once this is done it creates a record of the decedent’s heirs which can speed up the estate settlement process.
Here is an article about what’s included in an affidavit of heirship.
Image via Pexels by Vidal Balielo
Who Needs an Affidavit of Heirship?
Because the affidavit of heirship can establish who legal heirs of the decedent are, what property the decedent left behind, and how the assets of the decedent should be distributed, heirs need an affidavit of heirship in the event that the decedent passed away without a will.
Also, because it speeds up the probate process and can be executed without involving the probate court, it’s even used in some cases where there is a will.
Get Help With An Affidavit of Heirship
Whenever someone passes away without a will, an affidavit of heirship plays a crucial role in identifying all of the decedent’s heirs. It could, however, be complicated, especially for laypeople to prepare on or know what information it should contain.
Fortunately, estate planning lawyers and probate lawyers have the knowledge and experience to give advice and help where necessary. For more information on estate planning and probate lawyers, visit our website for more details.
ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.
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Meet some of our Affidavit of Heirship Lawyers
Samuel R.
My career interests are to practice Transactional Corporate Law, including Business Start Up, as well as Real Estate Law, Estate Planning Law, and Intellectual Property Law. I am currently licensed in Arizona, Pennsylvania and Utah, after having moved to Phoenix from Philadelphia in September 2019. I currently serve as General Counsel for a bioengineering company. I handle everything from their Business Transactional Agreements, Private Placement Memorandums, and Corporate Structures to Intellectual Property Assignments, to Employment Law and Beach of Contract settlements. Responsibilities include writing and executing agreements, drafting court pleadings, court appearances, mergers and acquisitions, transactional documents, managing expert specialized legal counsel, legal research and anticipating unique legal issues that could impact the Company. Conducted an acquisition of an entire line of intellectual property from a competitor. In regards to other clients, I am primarily focused on transactional law for clients in a variety of industries including, but not limited to, real estate investment, property management, and e-commerce. Work is primarily centered around entity formation and corporate structure, corporate governance agreements, PPMs, opportunity zone tax incentives, and all kinds of business to business agreements. I have also recently gained experience with Estate Planning law, drafting numerous Estate Planning documents for people such as Wills, Powers of Attorney, Healthcare Directives, and Trusts. I was selected to the Super Lawyers Southwest Rising Stars list for 2024 - 2026. Each year no more than 2.5% of the attorneys in Arizona and New Mexico are selected to the Rising Stars. I am looking to further gain legal experience in these fields of law as well as expand my legal experience assisting business start ups, and also trademark registration and licensing.
"Thanks Samuel for your thorough review of my materials. I'm incredibly impressed by your prompt turnaround in drafting my letter. The letter captured the facts perfectly and struck exactly the right tone."
Brian W.
As a licensed AL lawyer with over 7 years of experience in the legal field, I have spent more than 15 years working in the business and finance sector. I am deeply passionate about immigration, contracts, & my expertise spans a wide range of projects. From handling ICOs & IPOs to navigating VCs, SaaS, OnlyFans, Wholesaler & Manufacturing Agreements, Prenups, Movie Finance, M & As, Visas, Green Cards and more. I have a comprehensive understanding of various contractual needs. Whatever your contract requirements may be, feel free to reach out to me—I can craft or work on any contract with precision and expertise.
"Brian was great to work with and delivered the work requested well before the deadline. He went above and beyond to provide what I needed for my project. Thanks, Brian!"
George O.
George Oggero is a down-to-earth lawyer who understands that his clients are human beings. He is a lifelong Houston resident. He graduated from St. Thomas High School and then Texas A&M University. He obtained his Doctor of Jurisprudence from South Texas College of Law in 2007. He is experienced in real estate, criminal defense, civil/commercial matters, personal, injury, business matters, general counsel on-demand, and litigation.
"George simply and clearly helped me understand the requirements associated with my business which saves me time, money and unnecessary paperwork!"
David B.
A twenty-five year attorney and certified mediator native to the Birmingham, Alabama area.
"David was able to meet my turnaround time and still do a thorough job and provide great feedback on my document."
Jason H.
Jason has been providing legal insight and business expertise since 2001. He is admitted to both the Virginia Bar and the Texas State Bar, and also proud of his membership to the Fellowship of Ministers and Churches. Having served many people, companies and organizations with legal and business needs, his peers and clients know him to be a high-performing and skilled attorney who genuinely cares about his clients. In addition to being a trusted legal advisor, he is a keen business advisor for executive leadership and senior leadership teams on corporate legal and regulatory matters. His personal mission is to take a genuine interest in his clients, and serve as a primary resource to them.
"Wonderful attorney! He was extremely professional, answered all of my questions and was patient with my complicated legal situation. Don’t hesitate to hire him."
October 12, 2023
James D. F.
Unique Hybrid Background ➲ Deep Legal, Tech & Commercial Experience More by pure chance than design, I arrived late in life to pursue a career in law. My background spans more than 3 decades across Information Technology, entrepreneurship & the legal profession supporting my claim to being a 'Deep Generalist'. What is a 'Deep Generalist'? 'The professionals who develop into really great client advisors are deep generalists.' Quote from Warren Bennis. From 2013 I worked for established boutique property, finance & commercial law firms + an award-winning #newlaw firm of senior lawyers (formerly Nexus Law Group, now merged with Arch.law) before founding my digital law firm Blue Ocean Law Group in 2017. I also worked part-time for 2 years as a freelance online expert across all aspects of Australian Law with JustAnswer (H.Q. in San Francisco) and volunteered at the Caxton Legal Centre to give back to the community. Now I offer pro bono (free) legal assistance at my discretion. My achievements in the law are best reflected in the high number of settlements where civil litigation has been avoided, court judgements (incl. successful appeals) in my clients' favour & [90+] testimonials which can be seen on the blueocean.law [700+] page website which offers tons [585+] of both free & paid innovative legal products & resources. My personal experience as a client on the other side of legal matters affords me a unique perspective and goes some way to explaining my passion for the reinvention of the delivery of legal services. I am an early adopter of technology + gadgets, an avid reader and an animal lover. In January 2023, I joined the IAPP – International Association of Privacy Professionals and became a Certified Information Privacy Professional – United States by gaining the highly valued gold-standard ANSI-Accredited CIPP/US credential. I followed this up in August 2023, by obtaining the Certified in CyberSecurity qualification form ISC(2). Pre-Law Background From 1992 to 2002, I worked for Accenture as an IT Project Manager across APAC (including long-term project assignments in New Zealand & Singapore). I started a small business side hustle in 1997 and in 2003 I left Accenture to become a full-time entrepreneur in the transport industry. I later expanded into the mezzanine property development finance market as well as venturing into small-scale property development.Unique Hybrid Background
October 15, 2023
Kchris G.
My name is Kchris Griffin. I am an licensed attorney practicing Family and Civil Law in Oklahoma. My goal is to help those in need with receiving efficient and effective legal services.
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Estate Planning
Affidavit of Heirship
New York
What are inheritance rights for niece and nephew?
My Aunt passed away July 9, 2021 and she had a will. On the will she stated that she wants everything left to my mother whom is deceased as well and executer of estate is my sister.
Jane C.
Does the will have a provision that states who will receive your aunt's assets if your mother predeceased her? If not, I believe the rules of inheritance found in the New York Statute will govern. https://www.nysenate.gov/legislation/laws/EPT/4-1.1. Your sister needs to go to the Probate Court and/or consult an estate attorney.
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Small Estate Affidavit
Location: Pennsylvania
Turnaround: A week
Service: Prepare & File
Doc Type: Affidavit of Heirship
Number of Bids: 2
Bid Range: $450 - $1,500
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