How to Get Heir Property in Your Name if There Is No Will

By Marie Murdock

So, your parent or relative has died without a last will and testament, leaving you as sole heir or as joint heir with other relatives. If no estate planning provisions were made for property to pass into your name immediately upon death, then the laws of your state as well as the desires and wishes of other heirs, may influence how -- or if you acquire full ownership rights in the decedent’s property.

So, your parent or relative has died without a last will and testament, leaving you as sole heir or as joint heir with other relatives. If no estate planning provisions were made for property to pass into your name immediately upon death, then the laws of your state as well as the desires and wishes of other heirs, may influence how -- or if you acquire full ownership rights in the decedent’s property.

Small Estates Affidavit

Some states provide for the transfer of estate property by the filing of a small estates affidavit. This small estates process is often used to transfer a vehicle title or other personal property from the decedent’s name into the name of the legal recipient or recipients. The estate will have to meet certain criteria that state law has established to qualify, including a minimal estate value, with certain states requiring that no real estate is involved. A surviving spouse, child or other relative who is entitled to the decedent's property is generally required to file the affidavit. Some states require only that the completed appropriate affidavit be presented to the holder of personal property of the deceased, while others require the affidavit be filed with the court. Complexity of the small estate process varies from state to state. It may be necessary to familiarize yourself with the laws in the state of residence where the deceased lived.

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Intestate Estate Action

If the estate included real estate or other assets of substantial value, or if your state does not provide for the small estates process, a full administration may be required. The state law in which real property is located will determine who is entitled to inherit the property of a deceased who died intestate or without a will. A person entitled to receive property of a deceased will generally petition the probate court for letters of administration. If you are the administrator, these letters will authorize you to administer or manage the assets of the decedent, including transferring property into the name of the rightful heirs, upon order or authorization of the court.

Heirship Affidavits

If you are the sole heir or if all heirs are in agreement regarding the disposition of the decedent’s real property, particularly if a few years have passed since death, some states may provide for the filing of heirship affidavits with the probate court which will state the names of all heirs at law of the deceased. Generally, affidavits will be required from at least two people who are not interested in the outcome of the estate, but who are familiar with the family of the deceased. Once heirship has been established in this manner, the remaining heirs, provided they are legally able and willing to do so, may execute a deed to you conveying all their interest in the property. If you are the sole heir, the property will generally have passed to you upon the death of the decedent, subject to debts of the estate. In this instance, heirship affidavits filed in the real property records for the county where the property is located will put the public on notice as to your ownership of the property.

Court Action for Division

Depending on the circumstances or if a dispute arises as to property ownership, a court action may be required to divide or clarify ownership of the decedent’s property. If there were mistakes in prior deeds so that the property cannot be accurately described or if there are previously undisclosed or illegitimate heirs who come forward to claim a share, a court action may be necessary to determine ownership of the property.

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How to Transfer a Deed to a House if the Owner Dies Without a Will

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Does a Quitclaim Deed Pass to the Heirs?

When a person dies, a significant portion of his property passes through the probate process to be divided and distributed among the decedent’s heirs. Traditionally, an heir was a surviving spouse or relative who received property under the state’s intestacy provision. Intestacy only takes effect when there is no valid will. However, the modern definition of an heir includes anyone who receives property from an estate, whether through intestacy or a will bequest. The ownership rights of the heirs, including property that was acquired by the decedent through a quitclaim deed, depends on the circumstances of the transfer.

Getting a Heir's Name on a Deed

You may decide as part of your estate planning to deed an interest in your property to an heir prior to your death to avoid probate of the property. There are several methods to accomplish this; however, it is always best to consult with an estate-planning attorney to discuss all options as well as the tax consequences involved.

Oregon Small Estate Laws

If a person in Oregon dies and leaves behind an estate that qualifies as "small" under state law, his beneficiaries and heirs may not have to start full probate court proceedings to settle the estate. Oregon has two types of affidavits, which are sworn statements, for small estates: the testate affidavit and the intestate affidavit. The testate affidavit is used if the deceased left a will. If he didn't leave a will, the intestate affidavit is used. The affidavit filer must wait until 30 days after the deceased's death before filing the affidavit in probate court. She may file the affidavit in the probate court in the county where the deceased died or where he lived or owned real estate. The filer must submit the original will with the testate affidavit. Oregon law requires a certified copy of the death certificate for both affidavit types.

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