16 Dec Can You Transfer Real Estate After Death Without Probate?
Pros And Cons Of Affidavits Of Heirship
It is not unusual that the major asset upon death is a person’s home. Whether or not the deceased had a will, it is often desired that probate be avoided. If the deceased dies without a will, the process of determining who are the heirs and to whom property should be transferred after the payment of debts and who has the authority to pay all bills and distribute the property to the heirs can be made by a court. If the deceased died with a will, probate is when the court determines if the will is valid and who is qualified to serve as executor or as administrator (who would be responsible for paying the bills and distributing the remaining assets). Many desire a cheaper alternative to paying an attorney, paying filing fees and court costs in addition to the lengthy process of determining heirs or if a will is valid, etc. which is why many ask about affidavits of heirship.
What is an Affidavit of Heirship?
An affidavit of heirship is non-judicial evidence of heirship. It is not a court order. It is simply an affidavit regarding the family history, marital status or the identity of the heirs which includes the legal description of the property that would pass to the heirs. It is usually used when the deceased fails to have a will, but sometimes it is used even if there was a valid will. The affidavit (which is normally signed by at least 2 disinterested witnesses) is recorded in the county where the property is located.
Disadvantages to an Affidavit of Heirship
- An affidavit of heirship is only a presumption of evidence of heirs and title after being recorded for 5 years. Only a court order determines heirs that a title company can rely upon (assuming there is no will that has been probated). Anyone can challenge an affidavit of heirship – so title companies have different requirements as to what they will rely upon in issuing a title policy.
- An omitted heir could always contest the affidavit of heirship since it is only prima facie evidence after 5 years.
- An affidavit of heirship must state there are no debts other than those secured by real estate. If there are creditors, the affidavit of heirship can be contested by the creditor of the deceased.
- There are certain situations (i.e., sometimes surviving spouse who lives in the home) if all other assets are less than $75,000 and there is no will, then a Small Estates Affidavit and Order is better.
In conclusion, if the deceased did not have a will and real estate is the asset the deceased owned that needs to be transferred and there are no debts and there is no doubt as to who are the heirs and a title company indicates an affidavit of heirship is sufficient for the chain of title, then an affidavit of heirship is often considered since it is simpler, cheaper and the heirs do not have the time delay and costs of getting a court order. On the other hand, if there is any doubt as to the presumptions mentioned in the preceding sentence, then either the will should be probated or there should be an heirship determination if there is no will.
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