Can I do my own affidavit of heirship?

The short answer

Yes, with two caveats worth knowing before you start.

First, an affidavit of heirship does not put your name on the deed. It records who the heirs are so that the chain of title is provable. We explain why here, and it is worth understanding before you rely on one.

Second, a title company is not obliged to accept it. A well-drafted affidavit with credible witnesses usually is accepted; a thin one from a complicated family often isn’t. Care at this stage is what determines that.

What you need

• The right form. These are state-specific and sometimes county-specific. Several counties publish their own preferred version, and using it removes a reason for rejection.
• The legal description of the property. From the deed : lot, block, subdivision, or metes and bounds. Not the postal address. You can pull the deed from the county recorder, usually online.
• Complete family history.Every marriage and how it ended. Every child, living or dead, marital or not. If a child predeceased, their children. Whether the deceased’s parents survived them.
• The death certificate, and ideally certificates for any heir who has since died.
• Two disinterested witnesses. The hard part. See below.
• A notary, for every signature.
• The recording fee.Typically $15–$50 depending on page count.

Finding witnesses

Candidates that work well in practice:

• neighbors of long standing, particularly ones who knew the children growing up;
• members of the same church, synagogue or mosque;
• former colleagues or a long-time employer;
• in-laws who inherit nothing, a son-in-law is often ideal, since he knows the family intimately and takes nothing under intestacy;
• close family friends of decades’ standing;
• a family doctor, funeral director or long-serving caregiver.

Who cannot: any heir, any spouse of an heir who would benefit, any creditor of the estate, and anyone with a claim on the property.

Title companies weigh witness quality heavily. Someone who can say “I lived next door for thirty-one years and knew all four children” carries far more weight than a recent acquaintance.

Step by step

1. Pull the deed from the county recorder and copy the legal description exactly.
2. Write out the family history in full. Do this before touching the form. It is where the real work is, and it is easier to spot a gap in a plain list.
3. Gather documents that corroborate it: death certificate, marriage and divorce records, birth certificates, obituaries.
4. Line up your two witnesses and walk them through the facts. They are swearing to this, so they must actually know it.
5. Complete the form for your state and county.
6. Sign before a notary.Everyone signs in the notary’s presence. Do not sign in advance. Many banks will notarize several signatures at once if you arrange it.
7. Record it with the county where the property sits, and pay the fee. Keep the stamped copy.
8. Send a copy to anyone who needs it, the title company, the mineral operator, the tax assessor.

What gets them rejected

• An omitted prior marriage or child. The most common and most serious. A child from an earlier relationship is an heir whether or not the family acknowledges them, and an affidavit that leaves them out is false.
• An interested witness. Using an heir, or the spouse of one, voids the point of the document.
• The postal address instead of the legal description. Recorders reject these routinely.
• Vagueness.“Survived by his children” is useless. Name them, with dates and current addresses.
• Recording in the wrong county. It goes where the property is.
• Missing the state’s specific required language. Some states prescribe wording, and a form from a different state won’t contain it.

When to get help instead

• Any heir disputes the family history, or you suspect one might.
• There may be a child nobody can locate, or whose parentage is uncertain.
• Multiple generations have died without anything being recorded, so heirship has to be traced through several estates.
• The property is worth enough that a title failure would be serious.
• A title company has already refused an affidavit, at that point you need a judicial determination of heirship, not a better affidavit.