A universal truth among all adults who own any assets or have children is that they should have an estate plan. A Last Will and Testament is all many people need. Unfortunately, many people also pass away without any estate planning documents in place.
This situation can trigger a long and costly process in probate court, but there are ways around this. If your parent or loved one passed away without bequeathing the house owned in his or her name, you might be able to use an affidavit of heirship to efficiently put the title in an heir’s name.
What is an Affidavit of Heirship?
This legal tool is an affidavit that is used to identify heirs of a decedent who owns property and died intestate (without a Will or estate plan). Once completed, the heirship affidavit transfers title from the decedent to an heir identified in the affidavit. Many people use an affidavit of heirship so they can close a sale of a property; most title companies will usually accept an heirship affidavit.
An attractive part of an affidavit of heirship is that property owned by a decedent can be transferred to an heir without having to go through probate court—even if the decedent did not have an estate plan. This creates a clear chain of title. However, the real property must be a large portion of the estate in order for it to completely avoid probate court. If the estate is worth more than a certain amount, the heirs will still likely have to go through the probate process.
Heirship Affidavit Requirements
A valid affidavit of heirship is required to have the signatures of two disinterested (neutral) parties who still have knowledge of the decedent’s family history. To be neutral, the two witnesses should not be in a position to benefit from the affidavit. After the affidavit of heirship has been signed by all parties, it should be filed with the deed records in the county where the property is located.
An important note is that an affidavit of heirship doesn’t conclusively establish heirs. In other words, this affidavit provides weaker protections than a Will or other legally enforceable document. For many situations, though, an heirship affidavit is perfectly acceptable.
Conclusion
You might find yourself in a complicated mess if your loved one passed away without an estate plan. The most significant asset they left behind could be the family home. So, is there a way to get the title transferred without an arduous process in probate court? Theoretically, yes—through an affidavit of heirship. Before you use this legal tool, though, you need to speak with an experienced real estate attorney to ensure this is the best method for you to achieve your goals.
Albright & Lumpkin, PC
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