Affidavit of Heirship When a Spouse Dies

By Jill Lewis

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.

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.

Protect your loved ones. Start My Estate Plan

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.

Protect your loved ones. Start My Estate Plan
What Is an Heir Affidavit?

References

Resources

Related articles

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

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.

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.

How to Transfer Real Property Within Texas Probate

The death of a loved one is hard enough without having to figure out how to deal with what he left behind. Transferring the deceased's land or real estate into a new name can be complicated. The type of legal procedure that governs this process depends on whether the deceased left a will, how the property was titled and if any debts remain.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

How to Obtain an Affidavit of Heirship

When someone dies without leaving a will, his property is distributed to his most immediate heirs according to the laws ...

What Does an Affidavit of Heirship Mean?

A surprising number of people don't have wills. When a person dies without a will -- which is called intestate -- no ...

How to Get Heirship Over a Decedent's Estate

Not everyone makes a will directing the passing of their property after their death. If one doesn’t exist and the ...

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

When someone who owns the entire interest in a parcel of land or real property dies without a will, the state’s laws of ...

Browse by category
Ready to Begin? GET STARTED