WHAT IS AN AFFIDAVIT OF HEIR OWNERSHIP?
April 19, 2021
Estate planning is a necessary part of life. A properly executed estate plan allows you to direct that the beneficiaries of your choice receive the assets you want them to and avoid probate at the same time. However, not everyone does an estate plan prior to their death.
If an individual died without a Trust or Will, then you have a couple options. For the first year after their death you can open a probate estate; either a full estate if the assets are greater than $40,000 or a small estate if the assets are less than $40,000. If it has been more than a year since the death, the more likely court process is a determination of heirship. All of the probate processes are relatively expensive and an administrative burden on the family. However, when the ONLY asset is real estate and there is no personal property, bank accounts, etc involved, an affidavit of heir ownership, or affidavit of heirship, can be used to transfer real estate to the rightful heirs of the person who passed away. But, not everybody knows as much as they should about this type of document.
Let’s explore what you need to keep in mind.
What Exactly Is an Affidavit of Heir Ownership?
In the event that an individual passes away without writing a will, and it has been over a year since the date of death, this document can be used to prove and transfer real estate ownership. Interestingly, nearly 70% of Americans do not have an active will.
As mentioned above, in many cases, heirs are required to open a probate court case in order to secure the property that they are entitled to. This is often a drawn-out and expensive process.
But, Missouri statute allows an affidavit of heirs to circumvent the probate process and has a much smaller financial impact than a probate case. Remember, the affidavit of heirs can only be used to transfer real estate, nothing else.
How Can I File One?
In order to file an affidavit of heir ownership, you’ll need to have access to certain information. This includes the name of the person who died, their marital history, the date of their death, and the names of their family members or heirs.
As with all affidavits, the signature of the affiant must be notarized. Once completed and filed, the document will be recorded in the county recorder of deeds office where the real estate is located.
Filing this affidavit establishes a legal record of who the decedent’s heirs are and can drastically expedite estate settlement. This is particularly useful if the decedent owned a large amount of real estate or has a large number of heirs and filed to complete an estate plan before their death.
Is It Possible for It to Be Contested?
Like any legal process, this transfer can be contested. The most likely occurrence of a challenge is the affidavit of heirs is factually incorrect. For example, somebody who files the affidavit may neglect to list certain individuals as heirs of the decedent. The people who were omitted from the affidavit of heirs could then contest the affidavit and claim that they are rightful heirs to the decedent and thus are entitled to partial ownership of their property.
An Affidavit of Heir Ownership Is Crucial for Estate Planning
So, if you are faced with the situation where a family member failed to complete an estate plan, and the only asset to transfer is real estate, then an affidavit of heirship may be the best tool.
Want to learn more about what TdD Attorneys at Law has to offer? Feel free to reach out to us today and see how we can help.