When someone dies owning real estate, that property cannot be sold or transferred until the decedent’s name is removed from the title. Probate records become a link in the chain of title, demonstrating that the decedent’s property has passed to someone else.
But in cases where the decedent’s only asset is real estate, and there are no outstanding debts besides those secured by real estate, full probate may not be necessary. In some cases, an Affidavit of Heirship can be a cheaper and less time-consuming alternative to probate.
How is an Affidavit of Heirship Different Than Probate?
An Affidavit of Heirship is not a formal adjudication like probate is. Rather, it is an affidavit outlining the deceased person’s family history and the identity of heirs. Nothing is filed in the Probate Court. Rather, the affidavits are filed in the public records of any counties in which the decedent owned property.
Reasons Heirs Choose Affidavits of Heirship
The primary reason heirs opt for Affidavits of Heirship instead of full probate is that it is a cheaper alternative. Another reason is that more than four years have passed since the date of death, and probate may not be an available option.
Disadvantages of Affidavits of Heirship
While it is a cheaper alternative to a judicial determination of heirship, it does have some disadvantages.
- A judicial determination conclusively determines the heirs. Affidavits of heirship just create a presumption that the facts contained in the affidavit are correct. A challenger can rebut the presumption by introducing controverting testimony.
- The affidavit does not affect the rights of an omitted heir or a creditor of the decedent.
- It may not be recognized as a valid transfer of title by entities such as banks and title companies; it’s always best to check with the bank and title company before choosing how to proceed.
- Also, the affidavit does not become prima facie evidence of the facts contained in it until it has been on record for 5 years.
Who Can Sign an Affidavit of Heirship?
Heirs should not sign Affidavits of Heirship. Rather, the person who signs the affidavit (the affiant) should be a person who is familiar with the decedent’s family history and stands nothing to gain from the estate.
An affidavit of heirship is not appropriate for every situation. An attorney can help you determine whether an affidavit of heirship is appropriate for your unique circumstances.