Affidavit of Heirship
Author: Shreya Chakraborty, Amity Law School, Rajasthan
Affidavit in simple terms means a written statement confirmed by oath or affirmation, for use as evidence in court. Similarly, an affidavit of Heirship is needed to transfer the interest and property of the deceased person to his or her heirs when the decedent dies without leaving a last will or testament. Affidavit of Heirship is used for this reason only but sometimes it is used to simply name the decedent’s heirs for a court. This document establishes a link between the deceased family members to the surviving heirs. Furthermore, this document can act as proof of the ownership of the decedent’s property by the surviving family members.
Need for Affidavit of Heirship:
The need for the affidavit of Heirship arises when someone dies intestate i.e. without a will. When such a situation arises, a probate court usually reviews and determines how the decedent’s debts will be paid off and how any remaining property will be distributed among the heirs.
In some situations in spite of a valid will in existence, the heirs of the decedent may decide to use an affidavit of heirship instead of the will. If all the heirs agree to move forward with an affidavit of heirship and the affidavit mirrors the intent of the decedent’s wishes documented in their last will and testament, then the probate court will typically allow the family with the affidavit. By doing this, the heirs are able to transfer title from the decedent’s name in their own name in a shorter amount of time than having to wait for the will to go through the probate court.
To begin the affidavit, it should contain the names and addresses of the parties involved. “Affiant” is the person swearing to the facts stated in the document. The “Decedent” is the person who has passed away and whose heirs are being named in the document. Further, the document should disclose the nature of the parties’ relationship and the dates when the parties knew each other.
Essentials of an Affidavit of Heirship:
In the usual course of nature, the affidavit of heirship includes the following:
Who can draft an Affidavit of Heirship?
Hiring an attorney, familiar with affidavits of heirship is a good option to draft this document. An attorney that is familiar with the state and local rules regarding the proper execution of the affidavit will make the process effective and efficient. However it also important to make sure that all the requirements should have been met regarding the affidavit of heirship. Affidavit of heirship if not properly completed then it may be considered invalid and may not be considered a proper proof of heirship. Furthermore whoever drafts the actual affidavit; must be signed and witnessed by a neutral third party who usually is the notary public.
An Affidavit of Heirship should have the following attachments:
To execute the affidavit, the affiant will need to sign it in front of a notary public. Once the execution is complete the filing procedure takes place. The affidavit of heirship will need to be filed with the appropriate court. If there is any ambiguity on the part of the filing procedure then the administrator appointed by the court can help with the ambiguous issues.