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Wednesday, September 28, 2022

What is an Affidavit of Heirs?

After a person passes away, the assets in their estate will be distributed according to the terms they have set forth in their will. Should a person pass away without a will, they are said to have died “intestate.” Without a will, the estate assets will be distributed according to state intestacy laws. Generally speaking, Florida’s intestacy laws direct that the decedent’s closest relatives inherit from a deceased individual’s estate and more distant relatives may inherit depending on what relatives survive the decedent. If there are no known living relatives of a person who has died intestate, their assets will escheat, or “pass,” to the State of Florida. How does the probate court know who will inherit from a decedent who has died intestate? This is where an Affidavit of Heirs comes into play.

What is an Affidavit of Heirs?

An Affidavit of Heirs is a notarized legal document that identifies those set to inherit property after a person dies. It is most commonly needed when a person dies intestate. Florida probate courts use the Affidavit of heirs, also known as an “Affidavit of Heirship,” to determine the decedent’s heirs, or who will inherit from the decedent’s estate. An heir means a person that has or may have a legal right to property or assets from a person’s estate. An heir could be established through a will or it could be an heir that may have a right to inherit under a state’s intestacy laws. When there is no will, Florida’s intestacy laws govern who is an heir and, therefore, is legally entitled to inherit from the estate. The intestacy laws will also dictate who is to be appointed personal representative of the estate.

When a person dies intestate and has property to pass on, the probate court will still need to determine who will inherit the property the decedent left behind. For this determination to happen, an heir needs to open a Probate court case. It is likely that an Affidavit of Heirship will need to be submitted to the Probate court. In the affidavit, the known surviving family members of the decedent will need to be listed and their relationship to the decedent. The affidavit must also include the name and last known address of the decedent as well as their date and place of death and marital history.

The affidavit will play a critical role in the court deciding who will inherit from the decedent’s estates. Just because someone is listed on the Affidavit of Heirs does not mean they will end up inheriting from the estate. Based on the Affidavit and using Florida’s intestacy laws, the court will determine who will inherit from the estate. Most of the time, a Probate Court cannot proceed with this determination until the Affidavit of Heirs has been submitted in full.

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Do you have questions about estate planning or the Florida probate process? Get your answers at Verras Law. Contact Verras Law today.


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