What Is an Affidavit of Heirship? by Brette Sember, J.D.

What Is an Affidavit of Heirship?

You may need to create and file an affidavit of heirship if a family member has died without a will and you believe you are entitled to inherit any property left behind.

by Brette Sember, J.D.
updated July 09, 2021 ·  4min read

An affidavit of heirship is a document that can be used in some states to transfer ownership of property left by a deceased person to their family. This allows for property to be inherited without a will or a court proceeding.

woman with child on her lap looking at laptop

What Is Heirship?

Heirs are the surviving family of a person who dies. This is generally close family such as children, grandchildren, or parents. For someone without close relations, this could include cousins, aunts, and uncles. When a person dies without a will, state intestacy law determines who the heirs are and who will inherit the assets.

Heirship simply means you are the legal heir of someone who has died without a will. Heirs are different from beneficiaries. Beneficiaries are the people named in a will who inherit from someone who has died. When there is no will, heirship is created.

What Is Required for an Affidavit of Heirship?

In general, when a person dies without a will, their assets are passed down to their heirs through a process called administration of the estate. A surviving relative files a petition with the probate court asking that the deceased's assets be distributed to their heirs. The court then distributes the assets according to the state intestacy law, to the heirs listed in the state statute.

In some states, it is possible to skip formal administration of the estate if only a small amount of money, real property, or personal property remains. In this situation, an heir can simply file what is called an affidavit of heirship with the court. You may find this form on your state court website or through the court clerk's office, or you may need to have an attorney or legal services firm create one for you. The form is fairly straightforward and requires the following information:

  • Name, address, and date of death of the decedent
  • Whether the deceased person was ever married
  • Names of the surviving heirs
  • Statement that the deceased did not leave a will
  • Statement that you are an heir under your state intestacy law
  • Types of property to be distributed that meet the requirements of the state affidavit of heirship law and statement that you would like to claim it
  • Agreement by deceased's heirs about how the property should be distributed
  • Third-party verification that you have a right to inherit (a witness who can verify these facts and who signs the form)

You sign the document in front of a notary (if required in your state) and file it with the court or the county (whichever is required by your state). A small filing fee may be required. Once the affidavit is accepted, title in the deceased's assets will pass on to you.

Can an Affidavit of Heirship Be Contested?

Like any legal filing, an affidavit of heirship can be contested. Other heirs could come forward and disagree that you should receive the property, or complain that they are not listed as an heir on the affidavit. Another heir could also question whether you are actually related to the deceased person.

A person contesting your claim can file an affidavit with the information they believe to be correct. This could include documentation, such as a birth certificate that proves their claims. The court decides who is telling the truth.

Affidavit of Heirship in Texas

In Texas, an affidavit of heirship is used only for real property when:

  • There is no will, or
  • There is a will but it has not been probated four years after the death

The affidavit form is filed directly with the county where the deceased owned real estate. It must include all the details mentioned above as well as:

  • How long the heir has known the deceased
  • Information about the deceased's children and other heirs, including dates of birth, addresses, and descendants
  • Whether debts of the decedent are yet to be paid
  • List of all of property owned by the deceased at the time of death

The document must be witnessed by two disinterested parties (people who are not heirs) who have knowledge about the deceased and their family. The witnesses must also know the deceased had no debts when they died, the date and place of death, and family members' identities.

Once the document is accepted by the county clerk, it permits the transfer of the property's title, but if contradictory information comes to light after the fact, the court can reverse the transfer. Because of this, this document may not be accepted by some banks as legal transfer of title.

Options in Other States

While some states permit the use of an affidavit of heirship to transfer title, in others it is simply one document that is part of an estate administration case. In that situation, the affidavit is simply used to prove the family relationship to establish who has the right to inherit. It is not, by itself, a document that can be used to transfer title.

As an alternative to an affidavit of heirship, many states have small-estate administration proceedings that allow heirs to inherit through state intestacy laws without going through a full-blown court proceeding if the estate's value falls under a limit set by the state. This is similar to an affidavit of heirship but is simply called a small-estate administration.

An affidavit of heirship allows you to inherit property from a deceased relative without going through a long or expensive court proceeding, but it includes some risk since it could be overturned if the information you provide is not correct.

Ensure your loved ones and property are protected START MY ESTATE PLAN
Brette Sember, J.D.

About the Author

Brette Sember, J.D.

Brette Sember, J.D. practiced law in New York, including divorce, mediation, family law, adoption, probate and estates, … Read more

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.