Affidavit of Heirship?
If a person dies owning real estate, that property cannot be sold or transferred until the decedent’s name is removed from the title. Probate records become a link in the chain of title.
Many lay people think if the will names them as the heir of a piece of property, then the property becomes theirs. They do not realize that nothing has been changed in the chain of title. The lay person typically discovers the fallacy in their belief when they seek refinancing or to sell the real estate asset.
One mechanism to make a change in the title is an Affidavit of heirship. They are typically used for the limited purpose of transferring title to real property.
An Affidavit of Heirship is an affidavit detailing the decedent’s family history and identifies the heirs. The affidavit containing the statement must be on record for five years or more in the deed records of a county in this state in which the property is located at the time the suit involving title to property is commenced, or in the deed records of a county in this state in which the decedent was domiciled or had a fixed place of residence at the time of the decedent's death.
Many people get affidavit of heirships confused with Determination of Heirships. Unlike a judicial proceeding to declare heirship in probate court, an Affidavit of Heirship is not a conclusive determination of the heirs, it is only a presumption. The presumption can be rebutted by controverting testimony.
It should also be noted that in some circumstances an affidavit of heirship may not be recognized as a valid transfer of title by entities such as banks and title companies. You may still be required to file an application for letters testamentary or for letters of administration in probate court.
