In the United States common law system, probate court divisions are tasked with the responsibility of ruling on the legal affairs of the dearly departed. When it comes to distributing the property, assets, liabilities, and wishes of those who are no longer with us, there are two main legal conditions to consider: The presence of a will and intestacy.
For wills to be made public and administered to the letter of the law, they must generally be introduced in probate court. When someone passes away without a will, he or she is said to have passed intestate. In such case, probate courts will intercede on behalf of the decedent and apply the proper statutory measures. Let’s say a divorced man passes away in Montana and does not leave a will; in this case, his surviving children are supposed to get everything in accordance to state law. The probate court will make sure that the property passes to the children, but future transactions to sell or otherwise transfer that property may require an affidavit of heirship.
When Affidavits of Heirship May be Needed
Although probate courts determine the identity of the heirs and supervise the passing of intestate property, affidavits of heirship may be required in some cases. In some cases, the court will ask for such affidavits to be completed. In other cases, a title company may want require an affidavit of heirship to be attached to the abstract paperwork prior to issuing a lender’s or homeowner’s title insurance policy.
Writing an Affidavit of Heirship
It is important to note that probate matters tend to be very complex and should be handled by experience attorneys. Some states require specific language to be included in the affidavits for the purpose of making them valid.
As with other affidavits, the document must be introduced with the proper identification of the affiant, the person making the statement. The name, age and place of residence must be clearly stated. The next step is to declare the relationship to the decedent and other pertinent information such as: Date, time and place of death, the names of all other survivors who may have to file similar affidavits, an acknowledgement of intestacy, a description of the property, probate court details, the conditions of the estate administration, etc.
Known liens and other encumbrances on the property must be properly listed. The final step is to obtain witnesses who can actually attest to the relationship of the heir to the decedent. Once this is accomplished, the affiant and witnesses must execute the document in front of a notary public.