When someone dies owning real estate, that property cannot be sold or transferred until the dededent’s name is removed from the title. Probate records become a link in the chain of title, demonstrating that the decedent’s property has passed to someone else.
But in cases where the decedent’s only asset is real estate, and there are no outstanding debts besides those secured by real estate, a full probate may not be necessary. In some cases, an Affidavit of Heirship can be a cheaper and less time-consuming alternative to probate.
An Affidavit of Heirship is not a formal adjudication. Rather, it is an affidavit outlining the deceased person’s family history and the identity of heirs. Nothing is filed in the Probate Court. Rather, the affidavits are filed in the pubic records of any counties in which the decedent owned property or resided at the time of his death.
While it is a cheaper alternative to a judicial determination of heirship, it does have some disadvantages.
- Unlike a judicial determination which conclusively determines the heirs, the affidavit of heirship just creates a presumption that the facts contained in the affidavit are correct. The presumption can be rebutted by controverting testimony.
- The affidavit does not affect the rights of an omitted heir or a creditor of the decedent.
- It may not be recognized as a valid transfer of title by entities such as banks and title companies.
- Also, the affidavit does not become prima facie evidence of the facts contained in it until it has been on record for 5 years.
An affidavit of heirship is not appropriate for every situation. An attorney can help you determine whether an affidavit of heirship is appropriate for your unique circumstances.