An affidavit of heirship is an affidavit executed by a disinterested person familiar with the deceased person and his family tree, attesting to the identity of the heirs of the deceased.
There are two types of affidavit of heirship:
- Affidavit of heirship used outside of court to transfer real and personal property; and
- Affidavit of heirship submitted to the court in a petition for probate or administration.
Affidavit of heirship used outside of court
When the deceased passes away leaving only real property as his asset, the nearest living relatives usually prefer not going through the expensive process of probate. The title company, insuring the title of the real estate, will accept an affidavit of heirship, executed by a disinterested person with no financial interest in the estate of the deceased, stating who the deceased’s heirs or distributees are. The title company will then accept a deed executed by the heirs stated in the affidavit of heirship for the sale of real property.
Some businesses, banks, and financial institutions will also accept an affidavit of heirship for the release of personal property. This affidavit of heirship is executed under oath by the disinterested person under penalty of perjury.
The common information usually stated in the affidavit of heirship is:
- The affiant’s personal circumstances – name, age, address;
- The affiant’s relationship to the deceased, how long the affiant has known the deceased and his family;
- Who the deceased person’s heirs and closest living relatives are;
- A statement that there are no other marital, non-marital, or adopted relatives nearest to the deceased person that the distributees stated; and
- A family tree diagram that includes the date of death of deceased relatives closest to the deceased.
For an affidavit of heirship that is used outside of court, it will also include information regarding the deceased: where the decedent last resided prior to death, whether there are testate and intestate proceedings initiated regarding the decedent’s estate, and the date of death. This information is usually not required in the affidavit of heirship submitted to the court because this information is already included in the petition for probate or administration.
Affidavit of heirship submitted to the Surrogate’s Court
Under NYCRR 207.16, an affidavit of heirship is required in New York petitions for probate or administration when the decedent was survived by no distributee, one distributee or where the relationship of the distributees to the decedent is grandparents, aunts, uncles, or first cousins.
This affidavit of heirship should not be confused with the small estate affidavit required under SCPA 1310.
As previously discussed, the affidavit of heirship is an affidavit executed by a disinterested person, which should include a family tree unless the distributee is the spouse or only child of the decedent. The affidavit of heirship must include how long the disinterested person knows the decedent and is familiar with his family, the disinterested person’s relationship to the decedent, who the decedent’s distributees are, and a statement that there are no other persons of the same or nearer degree of relationship who survived decedent. This affidavit is executed under penalty of perjury.
The affidavit is not conclusive evidence of the identities of the heirs. It may be rebutted. An heir omitted in an affidavit of heirship may contest or dispute the affidavit by filing a correction affidavit in the same probate proceeding together with evidence to establish his relationship with the decedent (such as a birth certificate).
Section 207.16 states as follows:(b) Whenever, in a petition for probate or administration, a party upon whom the service of process is required is a distributee whose relationship to decedent is derived through another person who is deceased, the petition must either:
(1) show the relationship of the distributee to decedent and the name and relationship of each person through whom such distributee claims to be related to decedent; or
(2) have annexed a family tree table or diagram showing the name, relationship and date of death of each person through whom such distributee claims to be related to the decedent, which table or diagram shall be supported by an affidavit of a person having knowledge of the contents thereof.
(c) If the petitioner alleges that the decedent was survived by no distributee or only one distributee, or where the relationship of distributees to the decedent is grandparents, aunts, uncles, first cousins or first cousins once removed, proof must be submitted to establish:
(1) how each such distributee is related to the decedent; and
(2) that no other persons of the same or a nearer degree of relationship survived the decedent.
Unless otherwise allowed by the court, the proof submitted pursuant to this subdivision must be by an affidavit or testimony of a disinterested person. Unless otherwise allowed by the court, if only one distributee survived the decedent, proof may not be given by the spouse or children of the distributee. The proof shall include as an exhibit a family tree, table or diagram, except no such table or diagram shall be required if the distributee is the spouse or only child of the decedent.
When drafting an affidavit of heirship, it is best to consult with an estate lawyer with expertise on the subject matter to ensure that no mistakes are made. Should you need to draft an affidavit of heirship, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.