First, the affidavit of heirship must be prepared and signed by someone with first-hand, personal knowledge of family history (marriages, births, and deaths)
- thoroughly review relevant family facts, including whether or not the es and addresses of all heirs and other parties in interest, including their relationship to the deceased and (if relevant) their marital histories and whether or not they had children, the goal being to clearly map out the deceased’s line of succession with reference to applicable sections of the Estates Code;
- identify the affected real property, since this is how county clerks are able to record the instrument within the intended chain of title (it is astonishing how many affidavits of heirship fail to mention any property at all, making them of dubious value); and
- reach a reasoned conclusion as to the identity of the heirs and the amount of their respective interests. The affidavit should end with a positive assertion, for example: “Pursuant to Estates Code Section , I therefore assert that I am the sole rightful of John Jones, deceased. Accordingly fee simple title to the subject property vested solely in me and no other persons at the time of the decedent’s death.”
In filing an affidavit of heirship, an affiant is making a case-the case that the named heir or heirs now have full rights to specific real property.
Curing title (resolving heirship issues) outside of probate court is usually a two-step process. Accordingly, Internet forms should never be used for this or any other serious legal purpose.
The affidavit of heirship will generally be presumed to be true after it is has been filed of payday loans Hawaii record for at least five years, although no title underwriter is bound by this.
The second step in the process, after drafting, execution, and filing of the affidavit is a deed transfer that focuses title into a single heir who may then keep the property or sell it. Alternatively, all heirs ple) sign conveying the property to a third-party buyer.
Crafting a thorough and effective affidavit is both art and science and should be left to an attorney who will assure that its contents are admissible and persuasive in any future litigation
The deed is usually a special warranty deed or deed without warranties, but not a quitclaim deed, which is to be avoided because title companies ed in the affidavit (or their legal guardians) must sign. Both documents are filed in the real property records in the county in which the property is located-the affidavit first, and then the deed.
(1) an explanation of family history and circumstances (e.g., who married whom and who had children, who died with a will or without, who got divorced and re-married, and so on);
(2) a copy of the existing recorded deed to the property and, if available, a copy of a title commitment;
(4) an explanation of the client’s intent. Is the goal to consolidate title into one or more heirs? Or sell the property to a third party?
In many cases, heirs are spread across the country and may have lost touch. Some heirs may not sign unless they are paid to do so-and financial issues between family members can get ugly. Clients are often disappointed when they discover how difficult and expensive the process can be. Heirs may attempt to resolve heirship and title issues on their own, without an attorney (often using junk forms from the Internet), and are left with a result more confusing and chaotic than when they started. Affidavits and deeds may then have to be re-prepared and re-filed in order to correct the record, prolonging the process and increasing expense.