Affidavit of Heirship: Topical Outline
- What an Affidavit of Heirship Is
1.1 Plain-language definition
1.2 How it tells the world who inherited the property after the owner died
1.3 Why title companies and buyers care about it
1.4 Why people use it instead of opening probate - When You Can Use an Affidavit of Heirship
2.1 The deceased died without a will (intestate)
2.2 The deceased died with a will, but nobody probated it
2.3 The only asset that matters is real estate
2.4 Family is not fighting over the property
2.5 There are no major unpaid debts that will trigger a fight
2.6 When you should not use it:
– There is an active dispute over who should inherit
– There is already an open probate
– Property was held with right of survivorship (different tool applies)
– There are missing or unknown heirs - What the Affidavit of Heirship Actually Does
3.1 Creates a public record that says: “Owner died. These are the heirs. Title passed to them.”
3.2 Clears up the chain of title so the heirs can eventually sell or refinance
3.3 Provides a paper trail for title insurance
3.4 Lets future buyers feel safe that the right people signed the deed - What an Affidavit of Heirship Does Not Do
4.1 It does not instantly transfer title the way a deed does
4.2 It does not guarantee that the listed heirs are the only heirs
4.3 It does not wipe out liens, mortgages, judgments, Medicaid recovery, or IRS claims
4.4 It does not force a bank to talk to you or let you assume the mortgage
4.5 It does not override a probated will or a court order - Core Legal Requirements
5.1 Date of death and place of death of the deceased owner
5.2 Marital history of the deceased (all spouses, past and present)
5.3 List of all children, including deceased children and children born outside marriage
5.4 Statement that the deceased owned the property
5.5 Full legal description of the property (not just the street address)
5.6 Signatures from one or two witnesses who are not heirs and who knew the deceased’s family history
5.7 Notarization for both the witnesses and the person filing
5.8 Recording the affidavit in the real property records for the county where the land sits - Step-by-Step Process to Use an Affidavit of Heirship
6.1 Get the most recent recorded deed to confirm the deceased was actually in title
6.2 Gather family info: marriages, divorces, kids, deaths, etc.
6.3 Pick qualified witnesses who knew the deceased and the family tree
6.4 Prepare the affidavit using state-approved or title-company-accepted format
6.5 Have the witnesses sign in front of a notary
6.6 Record the affidavit with the county clerk / recorder / register of deeds
6.7 Keep certified copies for lenders, buyers, and oil and gas companies (if mineral rights are involved) - How Title Really Passes After Death (Why Heirship Matters at All)
7.1 Intestacy law: who inherits when there is no will
7.2 Spouse vs children vs children from prior relationships
7.3 Separate property vs community/marital property
7.4 What happens if one of the heirs listed in the affidavit later dies (layered heirship) - How Long Before Title Companies Will Rely on It
8.1 Some title companies will accept it immediately if the facts are clean and everyone signs
8.2 Some want a “seasoning” period (example: affidavit on record for a set number of years with no dispute)
8.3 Why messy family trees, blended families, or stepchildren slow everything down
8.4 Why multiple affidavits from independent witnesses carry more weight - Common Reasons Affidavits of Heirship Get Rejected
9.1 Missing heirs (example: child from an old relationship “nobody talks about”)
9.2 Wrong or incomplete legal description
9.3 Witness is biased (spouse, son, etc.)
9.4 Affidavit recorded in the wrong county
9.5 Gaps in the chain of title that weren’t addressed
9.6 Sloppy marital history (“he was married to Linda, or maybe they never divorced, not sure”)
9.7 Obvious dispute in the background (competing heirs, threatened lawsuit) - Heirship vs. Survivorship vs. Probate
10.1 Survivorship affidavit: used when co-owners took title with survivorship rights and one died
10.2 Affidavit of heirship: used when the deceased was the only owner or owned as tenant in common
10.3 Probate / summary probate: court order that declares who owns what
10.4 Why buyers and title companies prefer probate court orders in contested cases
10.5 When an affidavit of heirship is “good enough,” and when you get forced into probate anyway - Money, Debt, and Risk
11.1 Mortgage: lender can still demand payoff on sale
11.2 Property taxes: unpaid taxes still attach to the land
11.3 Medicaid estate recovery, nursing home claims, public benefits liens
11.4 Federal tax liens and judgment liens
11.5 Heirs think they “own the house,” but creditors still have first call in many cases - Special Problem Areas
12.1 The deceased kept title in only one spouse’s name, and the other spouse is still living in the house
12.2 Second marriage, children from a first marriage, angry stepfamily
12.3 No clear paternity / unknown child
12.4 Heir is a minor
12.5 Multiple deaths with no cleanup (grandparent died, then parent died, now grandchild is trying to sell)
12.6 Oil, gas, or mineral interests where operators demand very clean title - Planning Moves to Avoid This Mess in the Future
13.1 Put both spouses on title using survivorship language when appropriate
13.2 Use a living trust so the successor trustee can transfer title cleanly on death
13.3 Use a transfer-on-death / beneficiary deed where allowed by state law
13.4 Keep marital and child history documented and honest (paper beats “verbal family lore”)
13.5 Keep prior divorce decrees, adoption orders, and name-change orders handy for future heirs - FAQ Topics to Capture Long-Tail Search
14.1 “Does an affidavit of heirship give me the house?”
14.2 “Can I sell the house with just an affidavit of heirship?”
14.3 “What if one of the heirs won’t sign?”
14.4 “Do I have to tell the mortgage company?”
14.5 “Do I still need probate if we already filed this?”
14.6 “Is this the same thing as a small estate affidavit?” (Answer: no, different process, different statute)
If you want draft copy next, section 1 is the right place to start because it defines the term in plain English and sets expectation: “This will not magically make you the new owner today.”