A Brief Introduction About the Affidavit of Heirship Agreement
What is an affidavit of heirship? Not everyone who owns real estate or personal property has a will. Many people pass away at an early age without leaving a will. When a person expires without a will, the process of settling the deceased’s or the decedent’s estate can prove difficult at an already delicate time for the family. This is when the heirs can make an affidavit of heirship to establish their right over the deceased person’s property without the need to go to probate court. The affidavit serves as proof that the legal right to the title has been transferred from the deceased to the heirs.
It is a way to ease the process of settlement of property of the decedent and is faster compared to the option of going to court. The document can be made even if the person has left a will behind.
Who Takes the Affidavit of Heirship Agreement
The heirs of a decedent make the affidavit of heirship when there is no dispute about the property involved and generally when a person has died intestate. Typically, an heir can be:
- sons or daughters
- immediate family members
- blood relatives
Purpose of the Affidavit of Heirship Agreement
The affidavit of heirship form creates a right. It also asserts that a transfer of rights has taken place from the deceased person to the heir. The document gives clarity about who the heirs are, what the properties are, and who gets the right to the property. Once the estate of the deceased has been determined, the affidavit determines t who will have the responsibility to settle the estate of the decedent. It established ownership.
This legal document may be required despite the presence of a will instead of a deed transfer. It used when:
- There is an agreement about how the decedent’s property should be distributed among the heirs.
- The decedent has passed away intestate or has a will, but there is a need to settle the deceased’s property quickly.
- When the heirs do not want to go to probate court.
Contents of the Affidavit of Heirship Agreement
An affidavit of heirship must contain the name of all the heirs, their addresses, their contact numbers along with the same details of the deceased. If some of the heirs have passed away, the affidavit should mention the details of their heirs. It must mention the relationship of the heirs with the deceased and the date and place of death. The agreement must contain the details of the personal and real property of the person who has passed away, including the address and value of each.
The affidavit, be it the affidavit of heirship for a house or affidavit of heirship for a motor vehicle, must be attested by witnesses under oath or in front of a public notary who should have known the decedent and the family in the past. Usually, the number of witnesses required is two.
How to Draft the Affidavit of Heirship Agreement?
The laws about the document vary from place to place. An affidavit of heirship Tennessee may have to be drafted according to different laws than an affidavit of heirship for a motor vehicle Texas. If the parties do not prefer to engage a professional lawyer for the process of drafting the affidavit, then the outlines given by each state must be read before creating it.
Every affidavit is a unique document, which is why extreme precaution is advised before drafting it. If an already drafted form is being used to create the affidavit, then there arises the question, ‘how to fill out an affidavit of heirship?’. The form must be filled by a person who has known the family for long and is not set to benefit from the properties of the deceased. This person is known as a witness or an ‘affiant.’
- The affidavit must contain the name, address, age, date of birth, date, place, and cause of death of the decedent.
- It must also state if the deceased person was married and if yes, how many times. It must mention the status of each of these marriages.
- The affidavit must list all the details of the children the deceased had – adopted or biological.
- It must mention the names, addresses, dates of birth, contact numbers, and the relationship of all the heirs – alive or dead. The same information about the heirs of the dead heirs must be mentioned.
- It must list all real and personal properties of the deceased along with the location, area, value, etc. of the properties.
- It must mention for how long the witness knew the deceased and how.
- There should be a clause in the agreement about the debts the deceased had or has.
- A clause must mention whether the deceased had a will or died intestate.
- If the affidavit is being filled, no section should be left blank.
Once the agreement is drafted, it must be filed for record-keeping with the state’s local authorities. A certified copy must be obtained once the original has been filed.
In most cases, there is more than one heir. In such cases, a dispute might arise about the property owned by the deceased about the percentage of share each heir has in all the properties. If such a dispute happens, negotiation might help. Reminding the heirs that they are only functioning on behalf of the deceased and reminding them about how the loss has brought them together can help them to arrive at an agreement about the settlement of the deceased’s estate.
Benefits & Drawbacks of the Affidavit of Heirship Agreement
- The agreement creates a right for an heir/heirs.
- The agreement is a faster option than going to probate court.
- It is proof of ownership for the heirs and of transfer of the legal right to the title.
- It aids in the efficient and quicker settlement of the estate of the deceased.
- It can be used in the presence or even in the absence of a will.
- It can be expensive to get an affidavit drafted by an attorney as each affidavit is unique.
- There might not be an agreement between heirs about the affidavit of heirship, and there may be future claims of fraud.
- As the laws of each state are different, drafting a legally sound affidavit can be difficult. If the deceased has properties in multiple states, an affidavit of heirship will not help.
- It might put off certain insurance companies if the only title document available in the land records is an affidavit of heirship.
What Happens in Case of a Violation?
An affidavit is a written statement, and when a person signs an affidavit, he/she claims that what is written in the affidavit is true. A violation can occur when:
- Such a written statement is made under coercion, is misrepresented, or is false.
- A false claim of heirship is made by an heir.
- A witness commits perjury.
When a false statement is made in the affidavit(1), it is a crime, and the punishment can be a fine, time behind the bars or community service.
Affidavit of Heirship vs. Probate
An affidavit of heirship is a faster and cheaper way of settling the property of a deceased as it is done outside the court(2), whereas probate requires the supervision of the court and takes more time and money. When there is a clear title of the property, and there is no dispute among the heirs, an affidavit is helpful, but when that is not the case, going to probate court is the only method to resolve the problem and settle the estate of the deceased.
The affidavit can be drafted by anyone, but knowledge of the state laws is required. For probate, an attorney must be hired. The affidavit is a less formal process that proves useful in most cases.
If the heirship affidavit is an accepted title document in the state where the deceased lived, it is a hassle-free, faster and economical option to settle the estate of someone who passed away. It not only vests a right and is a declaration but is also a responsibility on the heirs to execute the document truthfully and determine how to settle the personal and real properties of the decedent.