Affidavit of Heirship When a Spouse Dies

by Jill Lewis
An Affidavit of Heirship may allow a deceased's property to pass to a surviving spouse without going through probate.

An Affidavit of Heirship may allow a deceased's property to pass to a surviving spouse without going through probate.

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When your spouse dies, you may have to go through a lengthy and complicated probate process before your spouse's assets can be released to you or any other heirs. However, in some cases, you can simplify this process by filing a document called an Affidavit of Heirship, which allows you to seek resolution of your spouse's estate with minimal court supervision -- and in a fraction of the time it would take to go through probate.

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Purpose of an Affidavit of Heirship When Your Spouse Dies without a Will

An Affidavit of Heirship is generally used when a person dies without a will and leaves behind only real property. Its purpose is to name the heirs of the deceased, known as the decedent, and establish ownership of the decedent's property. For example, if your spouse dies without a will and leaves behind only real estate and you want to sell the property, an Affidavit of Heirship may allow you to do so without having to seek court assistance or administration.

Purpose of an Affidavit of Heirship When Your Spouse Dies with a Will

Even if your spouse dies with a will, an Affidavit of Heirship may be used if probate isn't necessary and all the beneficiaries agree not to submit the will to probate. While in most states the law provides that the surviving spouse of the decedent inherits all community property as long as any children of the decedent are also the children of the surviving spouse, an Affidavit of Heirship sets forth absolute evidence of family history and relationships to determine the proper heir to the estate.

Contents of an Affidavit of Heirship

An Affidavit of Heirship must generally be signed by two witnesses. Ideally, these witnesses should have known the decedent, but are not interested parties, such as beneficiaries or heirs to the estate. In the affidavit, the witnesses must indicate that they knew the decedent, where and when the decedent died, the name of the decedent's spouse and children, acknowledge the decedent did not have any outstanding debts at the time of death, and confirm they do not stand to gain financially from the decedent's estate. The affidavit must be signed in front of a notary public.

Filing an Affidavit of Heirship

An Affidavit of Heirship should be filed and recorded in the deeds records in the county where the deceased's property is located. A recorded Affidavit of Heirship serves to provide a chain of title that links the spouse and any other heirs to the decedent's property. A properly filed and recorded Affidavit of Heirship is generally sufficient for title companies and real estate agencies to allow the sale of the decedent's property by the heirs.

State Requirements for an Affidavit of Heirship

The laws relating to Affidavits of Heirship vary from state to state depending upon the requirements of each state's probate code. For example, in Kentucky, an Affidavit of Heirship requires a preparation statement and a return mail address, while in Texas, the probate code provides a statutory form to follow when preparing the Affidavit. You can obtain a form Affidavit of Heirship in the record clerk's office or the tax assessor's office in the county where the deceased's property is located. There are also many websites that provide state-specific forms. While you can prepare an Affidavit of Heirship without the assistance of an attorney, if you are unfamiliar with a state's probate code, you may want to contact a probate attorney in the state where the deceased died to ensure your Affidavit complies with the particular laws of the state.