What Is an Affidavit of Heirship?
An affidavit of heirship is a legal document that can be used outside of probate court proceedings to transfer real property held solely in the name of the deceased to his or her heirs in the absence of a will specifying heirship.
If a person dies and their property is held in joint tenancy with right of survivorship, the property – home, land, farm – will pass without the need of probate to the joint tenant. An affidavit of heirship is the sole alternative to probate to pass real property to heirs when title is held only in the name of the person who died.
Note that an affidavit of heirship applies only to real property, not to bank accounts or other assets. To employ the affidavit to transfer title of the property to heirs requires that certain circumstances be met and certain steps taken.
How to File an Affidavit of Heirship
With real property “stuck” in the name of the deceased, the heirs cannot sell or do anything with it. If it goes through probate, the Missouri laws of heirship under intestacy—dying without a will—will determine ownership.
In general, in probate, if there are no children or stepchildren, the surviving spouse will get everything. If there are children, the spouse gets a certain amount, and the descendants get the rest.
To avoid this and file an affidavit of heirship, work with an experienced attorney. An estate planning lawyer can help you ensure that:
- There is no last will and testament, trust, or other heirship document
- The real property is titled solely in the deceased’s name
- The deceased has been dead for more than a year
- During that one-year-plus span, no will was admitted to probate
- The heirs completely agree on the terms of heirship
The affidavit must contain the following information, among others:
- The full name, address, age, and date of death of the decedent
- Names, addresses, relationship to the decedent of all persons claiming an interest in the assets of the deceased
- The percentage or fractions to which all persons claiming any interest in the assets of the decedent as heir or through relationship to an heir
- Description and value of assets
- Complete legal description of the real property as contained on the title deed
The affidavit must be notarized and witnessed by two disinterested parties who knew the decedent but do not stand to gain financially in any way from the filing. They could be neighbors, friends, or coworkers of the deceased. The affidavit must be filed in the county where the real property is located.
Can the Affidavit Be Challenged?
Like a last will and testament, an affidavit of hardship can be legally challenged. The challenge will often come from heirs who feel shortchanged or left out. That is why one of the necessary steps is to obtain the consent and agreement of all eligible heirs.