Affidavits of Heirship: When and How to Use Them in Estate Administration
June 10, 2025
In Florida, estate administration can be an intricate process, particularly when a decedent passes away without a will (intestate). One critical tool in such cases is the Affidavit of Heirship, a legal document used to establish the rightful heirs to a decedent’s estate.
This affidavit serves as a sworn statement, typically executed by disinterested parties with knowledge of the decedent’s family history, to identify heirs and facilitate the transfer of assets. Understanding when and how to use an Affidavit of Heirship is essential for traversing Florida’s probate and estate administration processes efficiently.
As an experienced probate attorney in Ocala, Florida, I can help explain the purpose, legal requirements, procedural steps, and practical considerations for using Affidavits of Heirship in Florida and provide a comprehensive guide for estate administrators, heirs, and legal professionals.
What Is an Affidavit of Heirship?
An Affidavit of Heirship is a sworn document that identifies the legal heirs of a decedent, particularly when no will exists or when certain assets aren’t subject to formal probate.
In Florida, this affidavit is often used to clarify the distribution of estate assets, such as real property, bank accounts, or personal property, by establishing the familial relationships and entitlement of heirs under Florida’s intestate succession laws.
The affidavit is typically prepared and signed by one or more disinterested individuals—people who have no financial stake in the estate but have personal knowledge of the decedent’s family history.
The affidavit includes detailed information about the decedent, such as their name, date of death, marital history, and surviving relatives, as well as a statement regarding the absence of a will.
Once executed and notarized, the affidavit can be used to transfer assets to heirs or to satisfy requirements of financial institutions, title companies, or other entities holding estate property.
When to Use an Affidavit of Heirship in Florida
Affidavits of Heirship aren’t always necessary or appropriate in every estate administration scenario. Their use is typically limited to specific circumstances, particularly in intestate estates or when probate isn’t required.
Below are common situations where an Affidavit of Heirship may be used in Florida:
Intestate Estates with No Formal Probate
When a decedent dies without a will, Florida’s intestate succession laws (Florida Statutes, Chapter 732) dictate how their estate is distributed.
If the estate is small or consists of assets that don’t require formal probate (e.g., personal property or real estate with clear title), an Affidavit of Heirship can be used to identify heirs and facilitate asset transfer without court involvement.
This is particularly useful for estates valued below Florida’s probate threshold or when heirs agree on distribution.
Transferring Real Property
In Florida, real property (e.g., a house or land) owned by the decedent may need to be transferred to heirs. Title companies or county property offices may accept an Affidavit of Heirship as evidence of the heirs’ entitlement to the property, especially if the decedent died intestate and no probate is initiated.
This is common in cases where the property has been in the family for years, and the heirs seek to update the title without formal probate.
Accessing Financial Accounts
Banks, credit unions, or other financial institutions may require an Affidavit of Heirship to release funds from the decedent’s accounts to their heirs. This is often the case for accounts without a designated beneficiary or payable-on-death (POD) provision.
The affidavit provides the institution with assuranceunless instructed otherwise by the user, a sworn statement from disinterested parties verifies the heirs’ rights to the funds.
Small Estates
Florida law allows for simplified procedures for estates valued under $75,000 (as of 2025, subject to statutory updates). In such cases, an Affidavit of Heirship can be used in lieu of formal probate to distribute assets, provided all heirs are in agreement and no disputes exist.
Clearing Title Issues
An Affidavit of Heirship may be used to resolve title issues for assets that weren’t properly transferred during the decedent’s lifetime. For example, if a decedent’s name remains on a property deed, the affidavit can establish the chain of ownership to the current heirs.
When Not to Use an Affidavit of Heirship
Affidavits of Heirship aren’t suitable for all situations. They shouldn’t be used when:
The estate is large or intricate, requiring formal probate.
There are disputes among heirs or creditors’ claims against the estate.
The decedent left a valid will, which must be probated.
The asset requires court approval for transfer (e.g., guardianship or trust assets). In these cases, formal probate or other legal processes are necessary to verify proper administration and compliance with Florida law.
Speak to a probate attorney for guidance through this process.
Legal Requirements for an Affidavit of Heirship in Florida
To be valid in Florida, an Affidavit of Heirship must meet specific legal requirements. While Florida Statutes don’t explicitly regulate Affidavits of Heirship, their use is governed by general principles of probate law, notary requirements, and the expectations of institutions accepting the affidavit. Key requirements include:
Sworn Statement by Disinterested Parties
The affidavit must be executed by at least one, but preferably two, disinterested individuals—people who have no financial interest in the estate. These individuals should have personal knowledge of the decedent’s family history, such as neighbors, friends, or community members who knew the decedent for a significant period.
Detailed Information
The affidavit must include comprehensive details about the decedent and their heirs, including:
The decedent’s full name, date of death, and place of residence.
Whether the decedent died intestate (without a will).
The decedent’s marital history, including all spouses and dates of marriage or divorce.
The names, relationships, and contact information of all surviving heirs (e.g., spouse, children, parents, siblings).
A statement that there are no known disputes or claims against the estate.
A description of the assets to be transferred (e.g., real property or bank accounts).
Make sure to confirm the validity of all information above with the help of a probate attorney.
Notarization
The affidavit must be signed under oath before a notary public to verify the affiants’ identities and the truthfulness of their statements. Florida requires strict compliance with notarization procedures, including the notary’s seal and commission details.
Compliance with Florida Intestate Succession Laws
The affidavit must accurately reflect the hierarchy of heirs under Florida’s intestate succession laws (Florida Statutes, Sections 732.101–732.111). For example:
If the decedent was married with no children, the surviving spouse typically inherits the entire estate.
If the decedent was married with children, the spouse and children share the estate, with the spouse receiving at least half.
If there’s no spouse, the estate passes to children, parents, or other relatives in a specified order.
Acceptance by Third Parties
While the affidavit is a legal document, its acceptance depends on the requirements of the entity receiving it (e.g., title company, bank, or county recorder). Some institutions may have additional requirements, such as a waiting period after the decedent’s death (e.g., one year) or corroborating documentation (e.g., death certificate).
How to Prepare and Use an Affidavit of Heirship in Florida
Preparing and using an Affidavit of Heirship involves several steps to confirm its validity and effectiveness. Below is a step-by-step guide:
Step 1: Gather Information
Collect all relevant information about the decedent and their heirs, including:
Death certificate.
Marriage or divorce records.
Birth certificates of children or other heirs.
Property deeds or account statements for assets to be transferred.
Confirmation of the decedent’s intestate status (e.g., no will found after a diligent search).
All of this information is needed before the process can successfully proceed. Speak with a probate attorney if you have questions.
Step 2: Identify Disinterested Affiants
Locate one or two individuals who knew the decedent and their family but have no financial interest in the estate. These individuals should be willing to swear to the accuracy of the family history and sign the affidavit.
Step 3: Draft the Affidavit
Prepare the affidavit, verifying it includes all required information (see Legal Requirements above). Use clear, concise language and avoid ambiguity. Templates for Affidavits of Heirship are available online or through legal professionals, but they should be tailored to the specific case and comply with Florida law.
Step 4: Execute and Notarize
Have the affiants sign the affidavit in the presence of a notary public. Verify that the notary follows Florida’s requirements for identification and documentation. Each affiant should swear to the truth of the statements under penalty of perjury.
Step 5: Submit to Relevant Entities
Provide the notarized affidavit to the entity holding the estate assets, such as a title company, bank, or county property appraiser’s office. Include supporting documents, such as the death certificate or property deed, as required. Be prepared to answer questions or provide additional information if the entity has specific policies.
Step 6: Record the Affidavit (if Necessary)
For real property transfers, the affidavit may need to be recorded with the county clerk or the property appraiser’s office where the property is located. Recording confirms the affidavit becomes part of the public record, facilitating future title searches.
Step 7: Monitor for Disputes
After the affidavit is used, monitor for any disputes or claims from unknown heirs or creditors. In Florida, creditors typically have two years from the date of death to file claims against an estate (Florida Statutes, Section 733.710), so prompt action is advisable.
Contact a Probate Attorney
By understanding when and how to use an Affidavit of Heirship, estate administrators and heirs can traverse Florida’s probate process efficiently while minimizing costs and delays. For complicated cases or potential disputes, consulting a probate attorney is recommended to confirm compliance and protect against future challenges. My firm serves clients throughout Marion County. Contact me at Michael A. Siefert, P.A., today to schedule a consultation.