What Does an Affidavit of Heirship Mean?

By Jimmy Verner

A surprising number of people don't have wills. When a person dies without a will -- which is called intestate -- no one knows how he wanted his property distributed. Absent a will, state intestacy laws spell out who receives the decedent's property. The property goes to the decedent's family members by order of relationship. An affidavit of heirship, sometimes known as an affidavit of descent, identifies these family members.

A surprising number of people don't have wills. When a person dies without a will -- which is called intestate -- no one knows how he wanted his property distributed. Absent a will, state intestacy laws spell out who receives the decedent's property. The property goes to the decedent's family members by order of relationship. An affidavit of heirship, sometimes known as an affidavit of descent, identifies these family members.

The Affidavit of Heirship

An affidavit of heirship identifies the decedent's heirs and explains how they are related to the decedent. By setting forth this information, the affidavit provides the evidence necessary to show that the decedent's property will belong to the identified heirs. The requirements for an affidavit of heirship vary among the states. For example, in New York, the affidavit must be signed by a non-family member who has no financial stake in the decedent's estate, but who knows the family well. In contrast, in Texas, an affidavit of heirship must be signed by one of the decedent's heirs. In addition, two witnesses also must sign the affidavit to confirm the accuracy of the information in the affidavit. The witnesses must not have any financial stake in the decedent's estate, but they must know the decedent and his family well enough to say that the person signing the affidavit is correct about who the family members are.

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How to Fill Out a Small Estate Affidavit in Indiana

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How to Prove That I Am an Heir in Probate Proceedings in Texas

Under Texas law, at least two circumstances exist in which you may be required to prove your relationship to a decedent. Both involve a relative dying without a will and pave the way for you to take ownership of his property as his heir. Heirs are not the same as beneficiaries. A beneficiary is someone named in a decedent's will to inherit from him. An heir is related to the decedent and inherits by virtue of that relationship when there is no will. Therefore, if you're not related to the decedent, you can't prove you're an heir.

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When a person dies, his heirs may be entitled to a share of his assets. However, potential heirs must first convince the probate court of their relationship with the deceased. Those with specific questions about proving heirship in California should seek legal advice.

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When a person dies, his estate must go through the probate process. However, Illinois allows small estates, estates worth less than $100,000 and containing no real estate, to avoid the probate process if the executor files a small estate affidavit. The law governing small estates differs somewhat depending on whether the decedent left a will or died intestate, meaning without a will.

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