Affidavit Of Heirship Explained

If someone dies without leaving a will, the letter of the law says they died intestate. When this situation happens, dividing the property and assets of the deceased individual will be governed by Florida’s intestacy laws. 

Generally speaking, the assets that weren’t distributed through the use of a will go to the heirs of the decedent. Nonetheless, a question arises:

How will the court determine who the heirs are?

In most counties, this is done through the use of a legal document commonly referred to as an affidavit of heirship.

Continue reading to learn about its importance and how you can protect yourself from a false affidavit of heirship, if needed.

What Is Defined As Heirship?

According to the law, heirship is a legal right to secure assets from a deceased individual who didn’t write a will in order to dictate how to distribute their assets fairly. 

Florida intestacy laws govern the appointment of a personal representative tasked with administering the estate who is eligible to inherit the assets in the estate. 

In the majority of cases, heirs are usually children of the deceased individual, as well as surviving close or distant relatives.

What Does An Affidavit Of Heirship Include?

This legal document is a sworn statement that identifies all family members of the decedent at the time of their death and describes how they are related. An affidavit of heirship includes information such as:

• Name of the decedent and their last known address
• Place and date of death
• Marital history of the decedent
• Surviving family members (children, parents, siblings, and extended family)

Using this information, the court will be able to establish the heirs. 

Keep in mind that being listed on the affidavit doesn’t guarantee you will receive any assets from the estate because it’s the intestacy laws that ultimately decide who is entitled to the inheritance. 

So in a sense, the affidavit of heirship is simply a tool used by the Probate court to accurately apply all needed laws to ensure all heirs eligible for the assets receive their share of the estate. 

It’s also worth noting that this affidavit must be drafted and filed so that an intestate estate can proceed. Without it, the court will be unable to appoint a personal representative, until one of the heirs petitions to be appointed as such by filing an affidavit with the Probate court.

Is It Possible To Contest An Affidavit Of Heirship?

Absolutely. 

Any heir who believes they should have been listed in the affidavit or disagrees about the persons included has the right to contest. Even if an heir (or a creditor) is omitted from the affidavit, it doesn’t affect their rights in any sense. They are allowed to challenge the document and claim an interest in the assets owned by the deceased family member.

They can do so by filing a counter-affidavit with what they believe to be correct information. The standard legal rules regarding the creation of an affidavit still apply and they must include all the documentation such as birth certificates to prove their claim to the estate. 

Ultimately, the Probate court will review all evidence and weigh them against each other before deciding which affidavit is more valid. Finally, it will use the “winning” affidavit as a guide to fairly apply the intestacy laws.

Can Someone File A False Affidavit Of Heirship?

Unfortunately, this is possible in some circumstances, and as estate attorneys, we witnessed instances of family drama play out before a court. 

There is one thing you have to remember: family ties are often complicated, and some individuals will try to abuse the established legal proceedings for their own gain (especially if other heirs are located in different geographical locations).

We’ll try to illustrate with an example. Let’s say a decedent was married once, had three children, and also owned 50 acres of land. The trouble is, they left no will and one of the children filed a false affidavit of heirship with the goal of claiming ownership of the estate while leaving out their siblings and mother. 

Although the false affidavit of heirship seems like it creates a great deal of trouble, refer back to what we explained earlier:

This document is only considered evidence once the court proceedings over the estate begin. 

Once an affidavit is filed in the county’s deed of records and signed by a witness before a notary, it’s considered “prima facie” evidence, meaning statements contained within are considered to be true. 

However, prima facie also means that the facts are only true until they’re contested by other evidence. Since the false affidavit of heirship doesn’t in any shape or form modify the legal rights of the other children and the surviving spouse, they can still file the correct version of the affidavit. 

If, by chance, the false affidavit of heirship is accepted and the court transfers the assets in question to the sibling, legal heirs may have to file proceedings to determine heirship in court within probate jurisdiction. 

Chances are, the judge will rule in favor of the spouse. This is because Florida intestacy laws mandate that all property owned by the decedent is passed on to the surviving spouse first and not to the children.

Is Filing A False Affidavit Of Heirship Illegal?

Yes. 

A false affidavit of heirship is illegal because a valid document requires the presence and signature of a witness. The witness who was employed by the person filing the affidavit may have either lied on purpose (in which case the misrepresentation of the facts was intentional and they have committed a crime of perjury), or they may have been misled by the person filing a false affidavit of heirship. 

Get In Touch With The Law Offices Of Mary E. King If You Need Any Legal Help

An affidavit of heirship is a useful method of avoiding probate when no will is left behind. If you find yourself in this situation, we suggest leveraging it to make sure you and other heirs receive the inheritance quicker than by using other methods.

Whatever your needs may be, drafting an affidavit of heirship or contesting one - you’ll likely need help to have everything go without a hiccup.

At the Law Offices of Mary E. King, we specialize in estate planning and we helped numerous clients over the years ensure their rights or rights of their heirs stay protected - and we can do the same for you too. 

Dial 941-906-7585 or fill out our online contact form to schedule a free consultation.

Note: 

The information in this blog post is for reference only and not legal advice. As such, you should not make legal decisions based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.