AND AFFIDAVIT OF HEIRSHIP
If you are living in a family home, have an interest in real estate, or mineral rights, where the original owner was a parent or grandparent, who died without a will, how do you prove that you are the owner of the property? This will be an issue if you want to sell, finance repairs, obtain an equity loan, or enter into a lease agreement. One solution is an “Affidavit of Heirship”
The proper way to establish who takes property where the deceased owner died without a will (‘died intestate’) is to obtain a court judgment in an “heirship determination”. To accomplish this, a lawsuit must be filed, there must be a hearing, and the court will issue a judgment. This can be expensive (thousands of dollars) and take months to finalize. Another less formal procedure is to file an Affidavit of Heirship.
An Affidavit of Heirship (“Affidavit”) sets forth the family history that establishes who are the heirs who can take under the intestacy laws. Generally, it must be executed by two persons (not heirs) who knew the deceased person and his or her family history. It is a fairly technical document that should be prepared by an attorney. The advantage of the Affidavit of Heirship is that it is much less expensive than obtaining an heirship determination from a court. If you are trying to sell or obtain financing, many financial institutions and title companies will accept the Affidavit as proof of ownership. While institutions may accept an Affidavit, they are not required to do so, and some may insist on a court judgment. After an Affidavit is on file in the county real estate records for five years, it presumptively establishes who the heirs are. While not foolproof, many times an Affidavit is a quick and inexpensive way of establishing ownership of heir property and, after consultation with an attorney, may be a useful tool.
If you are faced with the challenge of establishing ownership to heir property, contact the Law Office of Elliott Klein for a consultation