What it does, and what it doesn’t
It does not transfer title
This is the point families get wrong, and it costs them at closing. In Arkansas the affidavit is evidence of ownership, not a conveyance. Your name does not go on the deed. Title passed to the heirs automatically at the moment of death under the intestacy statute; the affidavit puts proof of that into the public record so a title examiner can follow the chain.
Evidence only: it does not transfer, convey, or vest title, and it is not a deed. Arkansas title to a decedent's real property passes at the instant of death by operation of law under Ark. Code Ann. § 28-9-206 (heirs take 'every right, title, and interest not terminated by the intestate's death'), subject to the surviving spouse's dower or curtesy, homestead and quarantine rights, statutory allowances, and the claims of administration. The affidavit does nothing to that vesting; it merely places a sworn recital of the family history and identity of the heirs into the county deed records so a later title examiner can follow the chain. Recording it under § 14-15-404 gives constructive notice of its contents. It does not adjudicate them. To actually move title out of the heirs, every heir (and each heir's spouse, to release dower/curtesy/homestead) must sign and deliver a deed. Critical and most-misstated point: Arkansas has no statutory prima facie evidentiary presumption for a recorded heirship affidavit, and no seasoning period that ripens one. Arkansas is not Texas. Texas Estates Code § 203.001 makes a recorded affidavit of heirship prima facie evidence of the facts stated only after it has been of record for five (5) years in the deed records of the county where the property is located; Arkansas has no analogue whatsoever. Any Arkansas content reciting a 'five-year rule,' a 'prima facie presumption,' or 'automatic title after recording' has imported Texas law by mistake. That is the single most common published error on this topic. In Arkansas the affidavit is and remains hearsay-grade recital whose weight is entirely a matter of an underwriter's or examiner's judgment. The only Arkansas instruments that produce a legally binding heirship determination are a § 28-53-101 order determining heirs and distributees (binding on all parties, subject to a 3-year right to vacate for persons not personally served), a § 28-41-101 small estate affidavit (which, unlike the heirship affidavit, is statutory, covers real property, and: after the 30-day publication: bars creditors after 3 months), full administration, or a quiet title decree. Separately, Ark. Code Ann. § 28-40-103's five-year bar on opening probate is often confused with a Texas-style seasoning rule: it is not an evidentiary presumption, it simply means that once five years have run from the date of death no administration can be opened, which is why underwriters relax after that point. That is risk tolerance, not a statutory presumption.
Statutory basis: No dedicated Arkansas statute creates or governs a real-property 'affidavit of heirship': it is a customary, common-law title-curative instrument, not a statutory device; Ark. Code Ann. § 14-15-404 (recording of any 'instrument of writing affecting the title' gives constructive notice; must be filed in the county where the real estate is situated); Ark. Code Ann. § 14-15-402 (recording formalities: document title, grantor/grantee names, 8.5x11, margins, acknowledgment per § 16-47-107 or § 18-12-208); Ark. Code Ann. § 28-9-206 (heirs take 'every right, title, and interest not terminated by the intestate's death,' subject to dower/curtesy, homestead, quarantine, statutory allowances, and administration): this, not the affidavit, is what actually vests title; Ark. Code Ann. § 28-9-214 (Table of Descents) and § 28-9-307 (half-blood), the descent rules the affidavit merely recites; Ark. Code Ann. § 28-53-101 (Determination of Heirs and Distributees, petition in circuit court; court order is binding on all parties, subject to 3-year vacatur by persons not personally served). This is the statutory heirship device in Arkansas.; Ark. Code Ann. § 28-41-101 (Collection of Small Estates by Distributee, affidavit filed with the probate/circuit clerk; expressly covers real property including homestead; 45 days after death; net estate excl. homestead and statutory allowances ≤ $100,000; publication within 30 days for real property creates a 3-month creditor bar; $25 filing fee; no court order needed); Ark. Code Ann. § 28-40-103 (no will admitted to probate and no administration granted after 5 years from death, the practical driver behind heirship affidavits); 18 CAR § 21-404(b) (Auditor of State unclaimed property rule, the only Arkansas regulation that names a form 'affidavit of heirship'; usable only for claims under $10,000; above that a court order establishing ownership is required)
When it becomes effective
None. There is no statutory waiting period before an Arkansas affidavit of heirship may be signed or recorded (it can be recorded the day after death), and, because no Arkansas statute gives it any presumption. There is no period on record after which it 'ripens.' Contrast the genuinely time-gated Arkansas devices: the § 28-41-101 small estate affidavit requires that 45 days have elapsed since death, and for real property triggers a publication within 30 days opening a 3-month creditor-claim window; the § 28-40-103 five-year bar on opening probate is the de facto milestone after which underwriters treat heirship affidavits as materially safer, but it is a repose period on administration, not an evidentiary presumption. In practice most Arkansas underwriters want the affidavit to have been of record and the death to have occurred at least 2 years prior (often insisting on the full 5 years for an uninsured chain), but this is underwriting custom, not law.
Witnesses
Arkansas requires 2 disinterested witnesses to sign. No Arkansas statute prescribes a number, so the requirement is customary title practice, not law. Standard Arkansas practice: and what title underwriters expect: is TWO disinterested affiants, each swearing before a notary, plus (usually) a separate affidavit or joinder by a surviving spouse or heir supplying the family facts. A qualifying affiant must have known the decedent and the decedent's family personally and for a substantial period (commonly 10+ years, long enough to know the marital and childbearing history firsthand), and must have no financial or beneficial interest in the estate or the property. Disqualifying: being an heir, devisee, or distributee; being the spouse of an heir; being a creditor or debtor of the decedent or the estate; being the buyer, lender, or a party to the pending transaction; standing to take under any contingency; being the drafting attorney or the closing agent; or being a person whose only knowledge is secondhand or derived from what the heirs told them. A neighbor, longtime church member, coworker, or family friend who inherits nothing is the archetype. Because the disinterest requirement is customary rather than statutory, the recorder will not police it, but a title examiner will, and an interested affiant is one of the most common grounds for rejection.
This is where most people get stuck, because the people who know a family best are usually family. Candidates that work in practice: long-standing neighbors, members of the same congregation, former colleagues or a long-time employer, close family friends of decades’ standing, and in-laws who take nothing under intestacy, a son-in-law is often ideal.
Who cannot: any heir, the spouse of an heir who would benefit, any creditor of the estate, and anyone with a claim on the property.
Where to record it
Real property records (deed records) of the office of the Circuit Clerk and ex officio Recorder of the county where the real property is situated, not the county of death, and not the county where the decedent resided. Ark. Code Ann. § 14-15-404(b) is explicit: an instrument affecting real estate must be 'filed for record in the office of the clerk and ex officio recorder of the county where the real estate is situated.' If the decedent owned land in several counties, record a separate original in each. (In Arkansas the circuit clerk is the recorder of deeds in most counties; a minority of counties assign recording to the county clerk, confirm locally.) Note the contrast: the § 28-41-101 small estate affidavit is filed with the probate clerk of the county of the decedent's residence/venue, and a certified copy is then recorded in the deed records of each county where land lies. Mixing these two filings up is a frequent error.
If the deceased owned property in more than one county, record a copy in each. Recording is what makes the affidavit part of the public chain of title, an unrecorded one accomplishes nothing.
What goes in it
- Caption/title of the document ('Affidavit of Heirship') on the first page, required for recording under Ark. Code Ann. § 14-15-402
- Decedent's full legal name plus every name variant or alias appearing in the record chain
- Date of death, place (county and state) of death, and the decedent's county and state of residence/domicile at death
- Sworn statement that the decedent died intestate, that no will has been found or admitted to probate, and that no administration of the estate has been opened or is pending in any county or state
- Complete marital history: every marriage, the name of each spouse, dates and places of each marriage, and how each ended (death or divorce, with dates), and whether a spouse survived the decedent
- Complete list of all children of the decedent by every marriage and outside marriage: including adopted children, non-marital children whose paternity was established, and children who predeceased, together with the names of each deceased child's own issue taking per stirpes
- Identification of the heirs at law and each heir's fractional interest computed under the Table of Descents, Ark. Code Ann. § 28-9-214, including half-blood shares under § 28-9-307 where applicable
- Express recognition and quantification of the surviving spouse's dower or curtesy, and the homestead and quarantine rights of the spouse and minor children, plus statutory allowances, the interests Ark. Code Ann. § 28-9-206(b) makes the heirs' interest subject to
- Statement of the decedent's parents and siblings where there is no surviving spouse or descendant, so the descent table can be applied
- Full legal description of the Arkansas real property (metes and bounds, or lot/block/subdivision, or section-township-range) plus the county. Not merely a street address or tax parcel number
- Statement of how the decedent acquired the property, with a reference to the recorded source deed (book/page or instrument number) tying the affidavit into the chain
- Statement that the decedent's debts, funeral expenses and taxes have been paid or that none remain outstanding, and whether any mortgage or lien encumbers the property
- Each affiant's full name, address, and statement of the affiant's relationship to the decedent, how long and how well the affiant knew the decedent and the family, and an express recital that the affiant is not an heir, is not related in a way that confers an inheritance, and has no financial or beneficial interest in the estate or the property
- Signature of each of the two disinterested affiants, plus (customarily) the signature of a surviving spouse or heir supplying the family facts
- Notarial acknowledgment or jurat conforming to Ark. Code Ann. § 16-47-107 / § 18-12-208
- Recording-format compliance under Ark. Code Ann. § 14-15-402: legible, 8.5" x 11" paper, 2.5" top-right space on page one for the recorder's file mark, 0.5" side and bottom margins, 2.5" bottom margin on the last page
- Name and address of the party to whom the instrument should be returned after recording
Will a title company accept it?
Limited and underwriter-dependent; expect it to be treated as a supporting document, never as the root of title. Arkansas underwriters generally will not insure a sale or refinance on a recorded affidavit of heirship standing alone, and Arkansas practitioners are candid that title companies 'often won't rely on it' and will require probate or a quiet-title action before issuing a policy. Where it is accepted, it is almost always for an older, quiet, uncontested, low-value intestate chain in which the death is well past the § 28-40-103 five-year bar and the heirship is obvious. What underwriters typically want alongside it: (1) a certified death certificate; (2) two properly notarized affidavits from genuinely disinterested affiants, recorded in the deed records of the county where the land lies; (3) a clerk's certificate or search showing no will was probated and no administration was opened, run in both the county of death/residence and the county where the property sits; (4) a deed executed by every heir and every heir's spouse (to release dower, curtesy, homestead and quarantine). This is the step that actually conveys, and no title passes without it; (5) proof that the § 28-40-103 five-year window has run, or an indemnity/hold-harmless plus escrow if it has not; (6) evidence that debts, funeral expenses, medical liens, DHS/Medicaid estate-recovery claims and taxes are satisfied or that no creditor claims exist; (7) affidavits of identity/name variance if the record name differs; (8) resolution of any minor or incapacitated heir through a guardianship, since minors cannot convey. Where the facts are anything other than clean, the underwriter will insist on the statutory route instead: a § 28-53-101 petition for determination of heirs, a § 28-41-101 small estate affidavit (which, uniquely among these, covers real property, requires 45 days, caps the net estate excluding homestead and allowances at $100,000, and after publication bars creditors in 3 months), full administration, or a quiet title suit. Cash and investor buyers are markedly more tolerant than insured-closing buyers, which is why so much online Arkansas content overstates acceptance.
Acceptance is a judgment call, not an entitlement. Title companies more readily accept affidavits that are detailed, corroborated by other records, and have been on file for a while. If the family history is complicated or disputed, expect them to ask for a judicial determination of heirship instead, slower and more expensive, but conclusive.
Common mistakes in Arkansas
- THE BIG ONE: recording it and believing title has moved. It conveys nothing. Under Ark. Code Ann. § 28-9-206 title already vested in the heirs at death; to get title out of the heirs and into a buyer, every heir must sign a deed. Owners who record an affidavit and then try to sell, mortgage, or list the property discover at closing that nothing was accomplished.
- Importing the Texas rule, asserting that an Arkansas affidavit becomes 'prima facie evidence' after five years on record. That is Texas Estates Code § 203.001 and has no Arkansas counterpart; Arkansas grants the instrument no statutory presumption at any point.
- Recording in the wrong county, filing in the county where the decedent died or lived rather than the county where the land lies, as Ark. Code Ann. § 14-15-404(b) requires; or recording in only one county when the decedent owned land in several.
- Ignoring the surviving spouse's dower or curtesy, homestead and quarantine rights. A deed signed by the children alone, without the surviving spouse joining to release, leaves an outstanding interest that stops a title commitment cold.
- Failing to obtain each heir's spouse's signature on the conveyance deed, the heirs' spouses hold inchoate dower/curtesy that must be released.
- Using affiants who are not actually disinterested: an heir, an heir's spouse, a creditor, the buyer, or the closing agent. The affidavit is worthless to an examiner the moment the affiant stands to gain.
- Affiants with insufficient personal knowledge, someone who knew the decedent only briefly, or whose 'knowledge' is what the family told them rather than firsthand knowledge of the marital and childbearing history.
- Incomplete family history: omitting a prior marriage, a divorce, an out-of-wedlock or adopted child, a child who predeceased leaving issue, or half-blood siblings whose shares are governed by Ark. Code Ann. § 28-9-307. A single omitted heir means the deed conveys only a fractional interest and the title is unmarketable.
- Defective or missing legal description: using the mailing address, the assessor's parcel number, or an abbreviated description instead of the full legal description, so the affidavit cannot be indexed against the correct tract.
- Recording-format rejection at the counter under Ark. Code Ann. § 14-15-402: wrong paper size, missing 2.5" file-mark space at the top right of page one, missing document title, or a defective/absent notarial acknowledgment.
- Using it when a will exists, when a will could still be probated, or when an administration is open. If death was within five years, Ark. Code Ann. § 28-40-103 still permits a will to be admitted or administration granted, and a later probate can upend everything the affidavit recites.
- Reaching for the wrong instrument entirely: trying to use an affidavit of heirship to collect bank accounts, vehicles, or personal property. That is the § 28-41-101 small estate affidavit (45 days after death, net estate excluding homestead and allowances not over $100,000, filed with the probate clerk) or, for unclaimed property held by the Auditor of State, the Auditor's own affidavit of heirship capped at $10,000 under 18 CAR § 21-404(b).
- Assuming creditors are cut off. The heirship affidavit produces no creditor bar. Only the § 28-41-101 small estate affidavit, with its 30-day publication and 3-month claim window, bars creditors, and only formal administration handles larger or disputed claims.
- Overlooking DHS/Medicaid estate recovery, unpaid property taxes, and existing mortgages, all of which survive the affidavit untouched and surface in the title search.
- Conveying while a minor or incapacitated person is among the heirs, without a guardianship and court approval, minors cannot execute a valid deed.
- Skipping the no-probate certificate from the clerk, which underwriters ask for as corroboration that the intestacy recital is true.
- Trying to use the affidavit to resolve a genuine dispute among heirs. Once anyone contests, the affidavit is useless; the fight belongs in a § 28-53-101 determination of heirs proceeding or a quiet title action.
You probably need the other affidavit too
An affidavit of heirship establishes who the heirs are. It does not collect bank accounts, final wages or a vehicle. That is what Arkansas’s small estate affidavit does. Families settling an intestate estate with both a house and a bank account commonly need both documents.
Sources
Common questions
Need this and a small estate affidavit?
Families settling an intestate estate with a house usually need both. The check tells you which applies.
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