CraveyLaw Memo by Robin T. Cravey
Sometimes, when a family member dies, there doesn’t seem to be any urgent need to settle their estate through the probate courts. The family may go on as usual until years have passed. If more than four years pass, then the courts cannot establish an administration on the estate, and passing title to property becomes more difficult. In other families, the only property that needs to be passed is a piece of real property.
In situations like this, an Affidavit of Heirship can be useful. The affidavit is a sworn statement, and it establishes the heirs of a Decedent. It is then filed in the official county records. This is an extra-judicial process, meaning that nothing is filed in probate court.
No administration established
1. Where the decedent died intestate, and more than four years have elapsed, no administration can be established, even through the probate court.
2. If the property to be transferred is simple enough, no administration is needed.
Determining heirs & other facts
3. An attorney should draft the Affidavit of Heirship. It will trace the decedent’s family tree and name all the heirs. It will also list any debts or taxes owed, as well as any real property owned by the decedent.
4. The affidavit should be signed (before a notary public) by all of the heirs and two disinterested witnesses. The disinterested witnesses must be people familiar with the decedent’s family history, but they cannot be heirs.
Transferring title to real property
5. The Attorney files the Affidavit of Heirship in the county property records. After the affidavit has been on file for five years, it can be admissible in court to prove heirship.
6. When the heirs are selling real property, a title company insuring the sale may accept the Affidavit of Heirship the same day it is signed.
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