Affidavit of Heirship Form

Affidavits of heirship will save time and money and help arrange the inherited real estate. If you want to avoid expensive probate proceedings, use our template to complete the affidavit yourself. The affidavit form must be signed in the presence of a notary public and then recorded with the county recorder’s office. You can also ask your family attorney for help during the preparation process.

Here are some definitions that may be useful to know:

Affidavit – a document used to make a written statement, which is sworn under oath to be true.

Affiant refers to the person who signs an affidavit and swears that its statements are true.

Decedent – a deceased person.

Heir – a person legally entitled to inherit some assets from a decedent.

Descendant refers to a child, grandchild or other person who descends from the decedent.

Intestate – refers to someone who dies without the last will.

Probate – a legal process in which the real estate is administered and divided among the legal heirs. This term also refers to a process of the last will validation.

When an Affidavit of Heirship Should Be Used

Nowadays, it’s common to make the last will to distribute the real estate after a person’s death. Still, a lot of people die without leaving this legal document. It happens due to different reasons, for example, sudden death or lack of resources to make a will.

If the decedent has neither the last will nor legal heirs, all of the assets will go to the state. However, when the decedent has, for example, a spouse and children, the estate should be divided among them.

An affidavit of heirship is a good way to transfer the decedent’s interest in the real property to the beneficiaries. The affidavit could be used not only if the last will is lacking but also if the decedent’s will was not probated within four years of the death.

No matter the case, an affidavit of heirship is a time and cost-effective way out of the estate division issue. It’s essential to use the affidavit correctly following the next requirements:

1. The identity of heirs is confirmed. There should be official documents proving that an individual is related to the decedent (family book, marriage, or birth certificates). The heirs under intestacy are, as a general rule, surviving spouses, children, and blood relatives. The unrelated people cannot claim the decedent’s estate in this case.
2. The property is well-described. The document should have a legal description of the real property, identifying all of the boundaries of a specific parcel of land. Generally, the affidavit of heirship forms are limited precisely to the real property distribution. However, some states, such as Texas or Tennessee, allow using the document to establish personal property ownership. Make sure to check the state and county requirements on the issue.
3. The heirs operate collectively. All family members, including a surviving spouse, children, and siblings, should agree on the property division and its future use. You can file an affidavit of heirship only if every beneficiary has signed the document. If someone does not agree to any issue, the property administration will go to probate court.
4. The affidavit is prepared by a disinterested affiant. The affiant, that is, the person preparing the affidavit, should not be the decedent family member and should not benefit from signing the document. But the affiant must know well the family history and be able to confirm the heirs’ identity.
5. The affidavit is notarized. To avoid any malpractice, a notary public should acknowledge the affidavit of heirship. A notary analyzes the documents connected with the family history and confirms the information along with the affiant.

Who Inherits When There Is No Will

An intestate estate is the property of a person who died without a will. In all 49 jurisdictions FormsPal's verified state data covers (48 states and DC), state law sets the share of that estate that goes to a surviving spouse. The exact share depends on where the decedent lived.

The same state data shows which other questions the rules answer:

• In 48 of the 49 jurisdictions covered, state law sets the share that goes to the decedent's descendants, such as children and grandchildren.
• In 45 of the 49 jurisdictions covered, state law explains how shares divide by representation. In plain terms, the descendants of an heir who has died step into that heir's place.
• In 42 of the 49 jurisdictions covered, state law names who inherits when there is no surviving spouse or descendant.
• In 6 of the 49 jurisdictions covered, state law sets a rule for half-blood relatives, who share only one parent with the decedent.

Check the rules of the state involved before you list the heirs on your affidavit. If you are unsure, ask your family attorney or the county office where you plan to record the document.

Intestacy Rules at a Glance

The table shows how many of the 49 jurisdictions FormsPal's verified state data covers have a rule on each question. A higher number means the rule appears more often in the data, not that every state words it the same way.

How to Prepare an Affidavit of Heirship

Losing a relative is a hard experience. You may want not to rush and wait a certain period after the death before preparing the affidavit of heirship. It’s okay, particularly since the state law contributes to this.

Some states have a waiting period after a relative passing before the affidavit may be filed. When the time comes, it will help to follow the next steps when preparing your document.

1. Collect all the necessary documents. First, you need to collect all the documents confirming that you are related to the deceased person, such as birth or marriage certificates. You may also need the death certificate with the date and place where the decedent died.
2. Communicate with other heirs. If you are not the only heir left, you are expected to communicate with other related members and siblings and contribute to the affidavit together. The affidavit of heirship forms work only if each heir agrees on the terms and signs the documents. Otherwise, the property will be distributed by a probate court.
3. Create the document. When every heir is identified and ready to cooperate, you can find someone who will prepare the affidavit of heirship. It should be an unrelated person who will not gain financially from signing the document. This person is expected to have first-hand knowledge about the decedent’s family history and be able to name the potential beneficiaries.
4. File the affidavit with deed records. The affidavit must be notarized and then filed with the county’s deed records where the decedent’s property is located. After that, the law allows you to manage the estate as agreed. However, the heirship affidavit is presumed to be a fact only after being filed for five years.

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Filling Out the Affidavit of Heirship Form

To create a comprehensive document, you are expected to complete various sections and answer specific questions. It’s possible to address the attorney and obtain legal advice while working on the document. Nonetheless, our free template includes all the necessary questions, and you will have to only fill in the relevant information.

Have this information ready before you start:

• Your name and address, and how long you have known the decedent
• The decedent's full name, date of death and marital status
• The names and addresses of the surviving spouse and all heirs
• The legal description of any real property, copied from the deed
• A list of other belongings and any debts the decedent left

Please follow the next steps.

Step 1. Identify the affiant

As the affiant filing the affidavit of heirship, you need to provide information about yourself. This includes your name and address, details on how you know the decedent, and for how long. These questions are aimed at confirming your competence to complete the document. Note that the affiant cannot be the family member or somehow related to the decedent.

Step 2. Define the decedent

You are expected to answer questions about the decedent’s family history. You also give the date of death and say whether the deceased died with or without a will. You have to also provide information about the marital status, name the surviving spouse, and, if applicable, indicate the spouse’s date of death.

Step 3. Indicate the heirs

You must fill in the information about all the heirs, including their names and addresses. If one of them is minor or incapacitated, their parents or legal guardians should sign the document. In some states, a spouse of the decedent is not considered an heir since they are entitled to properties following marital and community property laws.

Step 4. Describe the property

This section describes information about the real and personal property left after the decedent. You have to provide a legal description specifying the county where the property is located and the boundaries of specific land.

In the case of personal property, it’s necessary to list all the belongings. Also, you need to state whether the decedent has any debts. If the decedent isn’t transferring any assets, and the document is only necessary to establish the heirs, this section is omitted.

Step 5. Sign the affidavit

After completing the form, you must indicate the date, sign, and notarize it. Before filing the document in the county recorder’s office, please make sure that it’s free of any mistakes.

It’s also necessary to check the state laws since some jurisdictions may require additional witnesses to sign the form. It’s possible to attach other documents to the affidavit. For example, a copy of the last will (if any) or the papers proving the guardian’s competence to sign the form (if there is a minor).

Common Mistakes to Avoid

Small slips can slow down an affidavit of heirship, especially when a title company or a county office reviews it. These are common mistakes to avoid when you prepare yours:

• Leaving out an heir or misspelling a name
• Describing the property from memory instead of copying the description from the deed
• Choosing an affiant who does not know the family history well
• Forgetting the papers that back up the family facts, such as birth, marriage and death certificates
• Waiting until the document is finished to ask the county office what it needs

Frequently Asked Questions

What Is the Difference Between an Affidavit of Heirship and a Will?

A will is written by a person during life and says who should receive their property. An affidavit of heirship is made after the death by someone who knows the family. It states who the heirs are and how each one is related to the decedent.

Do Half-Siblings Count as Heirs?

Half-siblings share one parent with the decedent. In 6 of the 49 jurisdictions FormsPal's verified state data covers, state law sets a rule for half-blood relatives. Because the answer depends on the state involved, check its rules before you list a half-sibling on the affidavit.

Can I Fill Out an Affidavit of Heirship Online?

Yes. Our template asks a few questions about you, the decedent and the heirs, then builds the document for you. You can save your progress and finish on any device. To work on a downloaded copy, fill in the PDF with the PDF editor.

Do the Rules for an Affidavit of Heirship Change From State to State?

Yes. The number of jurisdictions with a rule varies from one question to the next, as the table above shows. For example, in 45 of the 49 jurisdictions FormsPal's verified state data covers, state law has a rule on distribution by representation. Check the rules for your state and county before you file.

How Long Does It Take to Prepare an Affidavit of Heirship?

Answering the questions in our template takes a few minutes when you have the family details ready. Three things usually set the pace:

• Gathering birth, marriage and death certificates
• Getting every heir to agree and sign
• Finding a notary public and an affiant who knows the family history

Start with the list of information in the section on filling out the form.

Do I Need a Lawyer to Prepare an Affidavit of Heirship?

Our template asks for all the details, so you can complete the affidavit yourself. An attorney can review it if the estate is large or the heirs disagree.

General information, not legal or tax advice.

Mara Erlach

Writer & Attorney

Mara has been practicing estate planning and trust law in California since 2003, taking pride in helping clients of all backgrounds and asset profiles form a complete and customized estate plan. Her specialties are: estate planning, wills and trusts, trust and probate administration.