Do I Sign an Heirship Affidavit Even If My Dad Had a Will?

If your father left a will, the personal representative named in it should take the original document along with a certified copy of the death certificate to the probate court of the county in which your dad lived. The judge validates the will, formally names the personal representative, or executor, and issues documents allowing the probate process to start. The executor must gather up all assets owned solely in your dad's name and establish their value at the time of death. He must pay your dad's outstanding debts and funeral expenses, file the final income tax return and estate return, paying any taxes due. When all debts are paid, he gives an accounting to the court and passes the remaining assets to the heirs named in the will. The estate is then closed. Depending on the size and complexity of the estate, the whole process can take several months to more than a year.

In some states, an estate consisting only of real estate with no outstanding debts can avoid the probate process if heirs sign an affidavit of heirship, although attorneys do not recommend doing this if the deceased left a will. At least one attorney, Dallas, Texas, estate lawyer Bill Wollard, warns that title companies are reluctant to accept affidavits of heirship. He adds that using such an affidavit in lieu of probating an existing will can prove financially disastrous to the surviving spouse if an unknown heir ever shows up. If Dad had a child he never acknowledged, if that child can prove paternity, she has a right to part of the estate. Title companies that do allow affidavits of heirship in lieu of probate often will not accept them until the deceased has been dead for several years, to protect themselves until the period for bringing claims against an estate has expired. If you do go forward with the affidavit of heirship, it is filed in the county in which the real estate is located, which is not necessarily the same county where your father legally resided. You can call the county clerk to find out if an affidavit of heirship in lieu of probate for real estate is allowed in the state.

Heirship affidavits are generally connected with the particular state's laws of intestate succession. These laws establish the deceased's rightful heirs, based on marital and kinship ties. Depending on state law, the estate passes to -- in order or by certain percentages -- the spouse, children, parents, siblings, nieces and nephews, grandparents and other next of kin.

If you go ahead with the heirship affidavit for real estate, you must find two disinterested witnesses willing to swear under oath to your heirship. Disinterested means they do not stand to gain financially from your dad's real estate. The affidavit states that the witnesses personally knew your late father. The document states the date of death and location, including county. It identifies members of your father's family and his heirs. The heirship affidavit also states that he did not owe any debts at the time he died. Once signed and recorded in the county deed records in which the real estate is located, you and other named heirs can usually sell the property.