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

By Ronna DeLoe

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

By Ronna DeLoe

If you are the heir of property but no estate planning documents provided for its transfer upon the death of the owner, all hope is not lost. Depending your state law, you may be able to do several things to get such property transferred to you.

State law determines estate distribution when someone dies intestate (without a last will and testament), but that doesn't mean that title transfers happen automatically. As the heir, you will have to initiate the process so that you can claim what is lawfully yours. Some of the most common ways states provide for transferring property into the name of an heir when there was no will include filing a small estates affidavit or affidavit of heirship, requesting letters of administration, and initiating court proceedings.

Small Estates Affidavit

Many states have streamlined the process for transferring property from the decedent's name into the legal recipient's name through the use of a small estates affidavit. What qualifies as a “small estate" varies by state law. In Texas, for example, an estate must have a value of less than $75,000 to qualify as a small estate, while the amount in Illinois is $100,000. Further, some state statutes prohibit the use of a small estate affidavit if real estate is involved.

Usually the spouse of the deceased, surviving child, or other relative must complete the small estates affidavit. Some jurisdictions provide that the affidavit must be filed in court, while in others only the person who holds the property must be given the affidavit. Generally, the form is available online and isn't complicated to complete and submit.

Affidavit of Heirship

If all heirs agree on the disposition of real property or if only one person is the heir, you may be able to clear title of property by using an affidavit of heirship. Perhaps several years have passed since the original property owner's death and you're just realizing you'd like to sell it, but you can't because it's not in your name. To establish ownership in this way, you usually need affidavits from at least two disinterested parties who are also familiar with the family of the decedent.

If there are other remaining heirs, they can execute a deed to you that passes their interests in the property to you. Alternately, if you are the sole heir and you are already in possession of the property, heirship affidavits are filed in real property records where the property is located, putting the public on notice that you are the owner.

Letters of Administration

While a small estates affidavit and an heirship affidavit allow you to avoid the probate process, sometimes these options aren't available. If real estate is involved, the assets' value exceeds the state statute's limit regarding small estates, or you otherwise can't use affidavits, you may have to request letters of administration from the court.

If you are granted letters of administration, you are considered the “administrator" of the estate, which gives you the authority to transfer title of estate assets. Again, state laws of intestacy will determine where certain property goes and, as the administrator, you would be in charge of facilitating those transfers.

Court Proceedings

If you and other heirs are not in agreement regarding the disposition of assets, you may have to file a court action to clarify ownership. This principle also holds true if illegitimate or previously unknown heirs come forward to claim the property or if the deed of title contains mistakes.

If you are faced with filing a court action to get property put in your name, you should consider seeking legal advice. The laws concerning estate transfer can get complicated, especially once court proceedings are involved, and there may be tax considerations as well.

Overall, so long as you're following the rules of intestate succession in your state, you shouldn't have much trouble getting heir property in your name even if the deceased didn't have a will. By following the procedures discussed above as they pertain to your circumstances, you should have your property free and clear in no time.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.