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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.
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