An Affidavit of Heirship is used to transfer property instead of probate when a person dies without a will. An Affidavit of Heirship is the instrument of choice when all heirs agree to not probate the will.
In most situations, the surviving spouse or children compose an Affidavit of Heirship to establish ownership of the community property owned by the deceased as long as the deceased’s children are the children of the surviving spouse and the property is not valued at an amount greater than the limits set by state law.
Fill out an Affidavit of Heirship to compile complete evidence of family history and determine the legal heirs of the property. Once the Affidavit of Heirship is signed and filed in the deed records, it links the title of the real estate to the heirs. It is at this time, the heirs are allowed to transfer ownership of the property.
Instead of the ordeal of going through the probate process to receive title to the property, the heirs can file an Affidavit of Heirship in the deed records office in the county where the real estate was owned by the Decedent. Title companies will then accept an Affidavit of Heirship to determine ownership of the property.
The Probate Code states that an Affidavit of Heirship must be signed by two witnesses with nothing to gain financially from the estate. In an Affidavit of Heirship, the witnesses must swear to these conditions:
- They knew the Decedent.
- The decedent did not owe any debts.
- The true identity of the family members and heirs.
- The person died on a certain date in a certain place.
- The witness will not gain financially from the estate.
An Affidavit of Heirship form’s sole purpose is to identify and set forth the actual heirs of the estate and it gives notice upheld in a court of law that a person has died intestate, or without a will. The Affidavit of Heirship then establishes title to estate property where the sole asset is real property.
With an Affidavit of Heirship you do not need to go through the burden of a court proceeding. An Affidavit of Heirship is filed in the county where the property is located. It is of utmost importance that the Affidavit of Heirship is prepared with factual information about the decedent and the assets of the estate.
The Affidavit of Heirship is then signed before a notary public by two witnesses that do not have any connection to the estate and is then filed in the real property records on file in the local county clerk’s office where the deceased’s property is located.
The court does not appoint an administrator in a determination of Heirship proceeding because no formal administration is necessary. In some rare instances, a financial institutions may insist on releasing estate funds to a court-appointed executor or administrator.
When filing an Affidavit of Heirship the following conditions must be met:
- A decedent must have died without leaving a will.
- No petition for the appointment of a personal representative is granted.
- Formal administration is not necessary.