In legal terms, dying without a valid will is known as intestacy. Each state has its own laws regarding intestacy, as well as the distribution of the decedent’s property if there is no valid will to determine how a person’s estate is to be distributed.
Additionally, these laws distinguish the differences between total intestacy, and partial intestacy. Total intestacy refers to dying with no valid will at all, while partial intestacy involves dying with a will that does not dispose of all of the property that belongs to the decedent.
According to general intestacy laws, it is generally the decedent’s surviving spouse who will have first rights to property distribution and inheritance. After that, most states follow the lines of the decedent’s descendants and their children. If there are no living family members at all, the decedent’s property will likely escheat to the state; what this means is that the property will generally go to the state in which they died.
As such, an intestate estate refers to an estate or portions of an estate that are not covered by a valid will. This lack of a valid will to provide instructions in terms of how to distribute the decedent’s estate generally leaves the estate to be distributed according to state probate laws. In the majority of cases, a valid will should prevent an intestate estate from occurring.
However, there are some instances in which some portions of the estate are not covered by the will. To reiterate, this is known as partial intestacy. An example of this would be if the estate holder obtained some property right before their passing, and that property does not fit into any of the provisions that are included in their will. This could result in some confusion regarding who should receive that specific property item.
What Is An Affidavit Of Heirship?
An affidavit is a written statement that is voluntarily made by an affiant or deponent, under an oath or affirmation. This is administered by a person who is authorized to do so by law. It is generally witnessed by a third party who has no interest in the case associated with the affidavit. Affidavits can be used as evidence in court.
Specifically, an affidavit of heirship is a legal document which establishes inheritance rights to property that is owned by a family member that has died without a last will and testament. The affidavit of heirship explains the relationship of the deceased family member to the surviving heirs, and can be used to declare ownership of the decedent’s property by the surviving family members.
An affidavit of heirship is often used when someone dies intestate, meaning without a will, as previously discussed. If a person dies without having written a will, a probate court will generally review and determine how the decedent’s debts are to be paid off, and how any remaining property is to be distributed among their heirs.
This probate court process can be lengthy and often expensive, which is another reason why solid estate planning is advised. However, an affidavit of heirship can expedite the probate process, and in some cases may eliminate it entirely. The information that is provided in an affidavit of heirship can assist the probate court in determining how to properly distribute the decedent’s property.
Even in instances of a valid will, the heirs of a decedent may decide to use an affidavit of heirship instead of proceeding with authenticating a will through the probate court. If all heirs of the estate agree to move forward with an affidavit of heirship, and the affidavit mirrors the intent of the decedent’s wishes as documented in their last will and testament, the probate court will generally allow the family to proceed 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, when compared to having to wait for the will to go through the probate court process.
What Is Included In An Affidavit Of Heirship? Who Can Draft An Affidavit Of Heirship?
Affidavits of heirship can vary from state to state. Generally speaking, an affidavit of heirship includes the following information:
- Detailed Contact Information: This would include the address, phone number, etc regarding the affiant; or, the heir that is completing the affidavit of heirship. The contact information that is requested may also include past addresses in order to verify identity;
- Detailed Information Regarding The Decedent: Detailed information regarding the decedent generally includes:
- The last and former addresses of residence;
- Names and contact information of their spouse or domestic partner at the time of death, as well as contact information for any former spouses or domestic partners; and
- The names and contact information of all known living and deceased heirs;
- Statement Of Relationship: The affidavit should include specifics which state how the deceased is related to the heir who is submitting the affidavit of heirship; and
- Signatures Of Parties Involved: This would include signatures of the heir, as well as the signatures of a neutral witness to the signing. The witness is most commonly a notary public.
It is important to note that each state has different instructions, rules, and laws in terms of the proper execution of an affidavit of heirship. Additionally, all the components of the affidavit must be included in order to be accepted as valid by the state government.
Hiring an attorney who is familiar with affidavits of heirship is a good option to draft this important evidentiary document. An attorney that is familiar with your state and local rules regarding the proper execution of the affidavit will make the process effective and efficient.
Most states allow for individuals to draft their own affidavit of heirship, or use a template. However, to reiterate, it is imperative to ensure that all of the state-specific requirements regarding the affidavit of heirship are met and adhered to. If the affidavit of heirship is not properly completed, it may be considered invalid and as such may not be considered a proper proof of heirship.
No matter which party drafts the actual affidavit, it must be witnessed and signed by a neutral party. States vary regarding how many witnesses must attest to the affiant’s signature. Again, it is imperative to determine the state specific witness requirements for affidavits of heirship.
How Can An Intestate Estate Be Avoided?
The best way to avoid an intestate estate is to draft a valid and legally enforceable will, or estate plan, while you are still capable of doing so. A clear estate plan can minimize your loved ones’ tax burdens, as well as the need for probate court hearings. An estate plan determines how your property is to be managed and distributed, which include instructions regarding your:
- Personal items;
- Bank accounts;
- Real estate; and
- Stocks and securities.
Another option is to appoint an estate administrator, or utilize a power of attorney. An estate administrator or executor is a trusted individual appointed to distribute an estate after death. The estate executor assumes general responsibility over the decedent’s finances, which could include:
- Dealing with creditors;
- Defending against lawsuits;
- Managing the estate’s assets;
- Identifying the will’s beneficiaries; and/or
- Ensuring that the beneficiaries receive their entitled inheritance.
Do I Need An Attorney For An Affidavit Of Heirship?
If you need to create an affidavit of heirship, or have other issues and/or questions regarding estate planning, an experienced and local estate lawyer can assist.
An attorney will be most aware of your state’s laws regarding the matter, and how those laws will influence your legal rights and options. Finally, an attorney can also represent you in court, should any legal issues arise with an affidavit of heirship.
