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Affidavit of Heirship

This Agreement is entered by and between Jonas Adam, individually or collectively as the "Signee" and Jane Smith, as the "Signer", together referred to as the "Parties".
The Contract is dated [the date both parties sign].

1. Agreement terms

The Parties agree that the following agreement is dependent on the terms presented as follow:

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Affidavit of Heirship

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What is an Affidavit of Heirship?

An Affidavit of Heirship is a written oath, which serves to verify that the named person is indeed a legal heir of someone who has died. In most cases, this document exists because someone died without having a will. The courts then need to establish how to distribute the estate of the deceased. 

Legally, an Affidavit of Heirship transfers cleanly possessions to the heirs of the decedent. Typically, the affidavit should be signed by two witnesses who are affiliated parties.  In some states, an Affidavit of Heirship is called a Declaration of Heirship, but the intent and execution is the same as if it were an affidavit and not a declaration.

For the Affidavit of Heirship to be considered legal, it needs to be signed in front of a notary public, as this person is legally authorized to executive oaths and act as an official witness of the court. 

When do you need an Affidavit of Heirship?

If someone dies without a will and holds property in his name, an Affidavit of Heirship is needed to clarify and identify the heirs to the property when the deceased has to will. By using this affidavit, it might be possible to avoid needing to go to probate court, which means the descendants can claim property quicker and cheaper than if they went through court. 

Sometimes, it’s easier to have an Affidavit of Heirship, even if there is a will. Using this affidavit could also help to speed up the process of transferring property to the heirs. Also, if there is no dispute, and it’s clear to whom the property should go to, an affidavit would be used as it’s a clean, efficient way to transfer the property. 

What if you don’t complete an Affidavit of Heirship?

Most likely, without a will or an Affidavit of Heirship, the descendants will need to go to probate court to sort out who inherits what. This will lead to extensive legal fees, and possibly lead to a delay in which the heirs do not receive their inheritance for months or even years. There will be a detailed review of the assets of the deceased, and ultimately the courts will determine who inherits what assets. 

How do you fill out an Affidavit of Heirship?

Legal documents can be tricky, so you might want to review a sample affidavit before doing it on your own. You’ll be able to find a variety of sample forms online. However, each state might be a little different, and you should review specific requirements for the state you are in.

After your review online, you’ll need to obtain an official Affidavit of Heirship form. If you have an attorney, he or she will most likely give you a copy of this form. If not, you can find the form online.

After you have the right form, move forward with filling it out. To do so, fill out some standard, basic information about yourself (as the executor) and the deceased, which needs to include the residency of the deceased when he or she died. The exact date of the person’s death is also required. After you are finished, sign the form with a notary present, and ask the notary to also date, sign, and stamp the document.

The notary will mandate that you provide photo identification when you sign the document.

Person Signing Document Paper
Filling out an Affidavit of Heirship is a fairly simple and quick process. (Source)

What information do you need for an Affidavit of Heirship?

You’ll need a variety of information about yourself as well as the deceased. There is quite a bit of information required, so you should collect all the information before you sit down to fill out the affidavit.

Executor’s information

Some of what you’ll need to provide is fairly obvious: your own name, address, and how you are related to the decedent (deceased party).  In the affidavit, you might be called the “affiant.” In this case, the affiant, when signing the affidavit, swears under oath that the deceased resided at the location that is named in the affidavit when they died. You might be required to complete an Affidavit of Identity that will serve to prove your own identity before you go any further with legal proceedings.

There are a few options to select from when identifying your relation to the decedent:

Usually, an executor is a person named in the Will to be in charge of the estate. If a person dies without a Last Will, the person assigned to handle the estate is referred to as an Administrator. Some states have replaced the term executor with personal representative, so you may see that title used instead (and often interchangeably).

Decedent’s information

You’ll need to know everything about the decedent as well. It’s important to include information on the deceased’s residence, date of death, and if he had a will. 

Information on other Heirs

If you are going to be sharing the possessions with other heirs, you will need their information as well. Perhaps you are the surviving spouse of the deceased, and some children will also be inheriting assets. You will need the names, birth dates, and residency location, of all heirs. 

How do I execute the Affidavit of Heirship?

Person Holding Black Pen
Executing the affidavit can be a simple way to transfer ownership of goods without a will. (Source)

Heirship is similar to “inheritance.” Inheritance is what the heirs are slated to take ownership off when someone dies. The Affidavit of Heirship is used to sort out what each heir is entitled to inherit. 

An affidavit of heirship is important when there is more than one heir. Witnesses should be asked sign. Anybody who has intimate knowledge about the property of the decedent can be asked to be a witness. The witness will also need to put in writing that they have nothing to gain by signing the affidavit, as they aren’t slated to inherit any assets. Under oath, the witnesses must state their relation to the deceased person. 

The affidavit also needs to include information on the deceased person’s marriage(s) including name of spouse, dates of marriage and divorce if applicable. Information on any living children should also be included. If the decedent never married, the affidavit can list the names of the parents of the deceased if they are living. 

The general rule

The easiest way to sort out heirship is to consider what the decedent would have wanted. While he might not have had a will, perhaps he vocalized his intentions before he passed away. This might involve asking a variety of witnesses to provide input and sign the affidavit.

Other determinants

Eo ensure you’ve got everything you need for your affidavit of hardship, there are a few other things to consider. Any of the following documents could help decide heirship:

  • Here is a child support agreement. You can use this if you have children that are slated to be heirs of someone you are no longer married to.
  • Joint Venture Agreement – if you have this document, you can prove that you are a business partner, and entitle to inherit any proceeds from the business.
  • It will be in your favor if you have an Affidavit of Service. This could prove that you’ve already served the decedent with official papers that entitle you to heirship. 

There could be more to consider, but this is a good start at setting up your Affidavit of Heirship. If you need to fill out an Affidavit of Heirship, many different resources that can help you. A lawyer is going to be the best resource, as they can talk to you about all the legalities of it. However, there are some great resources online if you need them.

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