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The Limitations of an Affidavit of Heirship

On Behalf of | Jul 12, 2019 | Estate Planning, Probate

We often get calls asking about Affidavits of Heirship, and if they are a good alternative when a loved one dies without a Will. Affidavits of Heirship can be a tempting alternative to instigating a probate proceeding because of the substantially lower initial cost, but there are limitations and risks associated with this alternative. Most financial institutions and title companies fail to advise clients of these limitations and risks.

An Affidavit of Heirship is not a formal adjudication of who inherits the decedent’s property upon death, but is rather an Affidavit outlining the deceased person’s family history and the identity of heirs which is filed in the public records where the decedent’s real property is located. Unlike a judicial determination which conclusively determines heirs of an estate, an Affidavit of Heirship only creates a presumption that the facts in the Affidavit are correct and this presumption can be rebutted. The filed Affidavit of Heirship does not become prima facie evidence of the facts contained in it until it has been on record for at least 5 years. What this means is that an Affidavit of Heirship cannot substantiate the heirs who inherited a decedent’s real property who died without a will until the expiration of the 5 year period. Since there is no clear and definitive transfer of title until that time, there is a risk that ownership by the heirs will not be recognized by third parties such as purchasers, banks and title companies. It is also important to remember that an Affidavit of Heirship does not affect the rights of an heir that might have been omitted or any creditors of the decedent. This means that an omitted heir or creditor of the decedent can challenge the ownership claim and claim an interest in the property owned by the decedent at any time.

While an Affidavit of Heirship can be an appropriate alternative for some, a probate proceeding is a safer alternative to establish a link in the chain of title when dealing with real property.

Please contact us to discuss your situation.

Duncan Webb

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