The filing of an affidavit of heirship varies by state and requires strict compliance with probate codes, as any violations or unsubstantiated claims can lead to dismissal. This legal tool is crucial for identifying heirs and expediting the transfer of real property when there’s no will, and it’s advisable to ensure all heirs agree and proper documentation is provided to avoid complications during the process.
Probate codes regarding the filing of an affidavit of heirship vary across states but it all comes down to compliance and the burden of proof. Whether you’re filing in California or Maine, violating the probate codes or making unsubstantiated statements may result in it being dismissed.
In our review of the affidavit of heirship we highlighted all the information required from all parties and provided the steps to ensure smooth filing.
Below is a list of instances when you can use this tool, but first, let’s define it.
What Is An Affidavit Of Heirship?
An affidavit of heirship is a sworn statement identifying heirs and claiming inheritance. It’s a revered tool among probate attorneys as it expedites the clearance of property for the title to be transferred. Other common names include pedigree affidavit, declaration of heirship and affidavit of succession to real property.
Typically, the attorney retrieves the forms from the county clerk’s office or local court websites, depending on the state. They then have them completed and signed according to the probate codes before filing them.
When to Use an Affidavit of Heirship
Below are circumstances under which the file may be necessary. Be sure to confirm with the most recent statutory requirements in your state.
When There’s No Will
This declaration is only used in intestacy cases that leave no directions on real property. When the decedent dies without a will or does not specify the fate of this given real property in the will, heirs can file an affidavit to claim it.
If All Heirs Agree
The family intricacies should inform the thought of an affidavit of heirship. If the heirs are well-known and agree on every aspect of the property, filing the declaration can help update the title within days. However, the same is doomed in a complex family structure with missing heirs and heirship claims.
For Real Property
Declarations of heirship are meant to register heirs to an uncontested and not yet probated real property left without a will. It is the best option when the primary asset in the estate is real property and falls within the set value threshold to avoid full probate. Claims on personal assets and finances may have to go through the small estate or bank affidavit.
For Small Estate
Simplified probate procedures in intestacy are limited to the value of the estate. For example, in Indiana, an estate exceeding $100,000 must undergo full probate. In California, the cap is set at $184,500, with the exemption of life insurance benefits, unpaid salaries, boats, cars, and properties outside the state, or jointly held.
If the Estate Is Not Yet Probated
Even the statements in the form require affiants to confirm whether a personal representative has already been granted or is pending court decision. Such designations or applications on the estate usually supersede and invalidate affidavits
If You Can Wait
Every state has a set duration after which you can file for an affidavit of heirship. Most states require a wait period of at least 30 days, ostensibly to avoid premature filing. Besides, such filing is discouraged when there’re prospects of finding a will. For example, Texas and Illinois allow up to four years and two years, respectively, for a will to be filed.
If All Heirs Are Identified
Heir identification is the major role of this legal tool, so it must carry the expected weight in persuading the clerk. While presenting the declaration to the relevant office in your state, you need to provide substantial evidence that you’ve done your homework on heir identification and their relationship with the decedent.
Accurate names, dates, and addresses, plus original copies of certificates to prove them can go a long way toward validating your affidavit.
If Free From Claims
Credit claims, especially from numerous creditors or exceeding the current value of the property in question are a major disqualifier of the affidavit. While the application may still go through when there are minimal claims, the probate process may still be recommended if things get overly complicated.
If You Have A Witness
Affidavits of heirship are normally signed by disinterested witnesses who must have known the family heirs and the decedent for a specific duration. They must not stand to gain from the estate and should not be related to the heirs. It bears repeating that the specifics change with state, with some providing a specific knowledge duration and others setting no strict requirement.
Pros and Cons of a Declaration of heirship
Like other legal procedures, filing an affidavit has its benefits and drawbacks. Understanding them will help you make an informed decision on whether to proceed or pursue a different approach altogether.
Benefits of using An Affidavit In intestate heirship
- Avoiding The Probate Process: Filing bypasses the complexities of the probate process, saving you the stress, costs, and time.
- Quicker Resolution: Filing is more straightforward, and assets are transferred relatively quickly, facilitating management or sale.
- Privacy: By avoiding the formal probate process, the simplified procedure keeps most details private, offering discretion to families who may want to keep things confidential.
- Cost Effectiveness: The declaration only requires filing and notary fees saving money for heirs, especially if the estate is of small value.
- Prevents Asset Escheatment: Filing this declaration registers a claim to an estate that would otherwise be declared unclaimed.
Limitations of affidavit of heirship
- Limited Assets: The process applies only to real property and may not cover personal items and bank accounts.
- Threats of Claims: Filing may prove ineffective for estates facing significant financial obligations. Such estates usually have to go through probate to settle claims before distribution.
- Decline By Title Companies: The declaration is not a court order, so companies withholding the real property may be reluctant to accept it as the only proof of heirship unless the property has also been subject to a formal title process that necessitates a court approval.
- Potential for Future Disputes: The Affidavit of heirship can be contested, especially if some heirs were omitted. In the wake of contestations, the case must undergo full probate during which the original heirs may be required to return a portion of the estate to compensate the new heir.
Use the Affidavit of Heirship Wisely
The affidavit of heirship has been a game changer in intestate proceedings involving simple real property. It has helped families quickly and privately distribute the decedent’s estate without having to incur processing costs or appearing before a probate court.
You can use the simplified procedure when there’s no will, if all heirs agree, for real property only, for small estate, if the estate is not yet probated, if all heirs are identified, if free from claims, and only when you have a witness. You also need to conduct due diligence on the part of heirship verification and compliance with state probate codes.