Not everyone makes a will directing the passing of their property after their death. If one doesn’t exist and the deceased owned real property, an Affidavit of Heirship is worth a look. This legal device can establish the deceased's rightful heirs and save a great deal of time and complexity in the probate process. In some cases, it will help you avoid probate altogether. Obtaining heirship over an estate is usually a simple process.
An heirship affidavit is an instrument commonly used to establish the heirs of a person who died without a will. It is used in limited circumstances, often to establish real estate ownership and a clear chain of title. The heirship affidavit is recorded alongside the title and deed in a county’s land records. This deed, in some states, is referred to as a curative deed because it cures title problems. The longer the affidavit is on file, the less likely it will be challenged as inaccurate or fraudulent.
The estate must qualify for an heirship before you can get one. Generally, the estate must be small enough that it doesn’t have to go through probate. This statutory amount varies from state to state. For example, Michigan allows property to skip probate if the estate is worth less than the cost of funeral expenses plus $15,000. In Texas, the amount jumps to $50,000. States also usually require that the deceased not have any debt. Finally, all potential heirs must agree to the affidavit. Just one contesting heir can force the issue into probate court.
The heirship affidavit must contain sworn statements from at least two witnesses who knew the deceased and his family members, but who do not stand to gain financially from the estate. Typically, the affidavit must also include the time and place of the person’s death and a statement that the deceased did not owe any debts. Once the affidavit has been signed and recorded at the courthouse, it serves to link the chain of title in the deceased’s real estate to his heirs. At that point, most title companies will issue insurance, allowing heirs to sell or mortgage the property if they wish.
There are two primary reasons to obtain an heirship affidavit. One is to get clear title and avoid probate. Property without clear title is essentially unsellable because a title company won’t insure it until heirs are determined. This can be done using the heirship affidavit along with a curative deed signed by all heirs. The alternative is a probate proceeding where the probate judge ultimately determines the heirs of the deceased. Secondly, an heirship affidavit can avoid the time and costs of probate with the same result – clear real estate title.