Do I Sign an Heirship Affidavit Even If My Dad Had a Will?
The law uses heirship affidavits to determine whether someone is a legal heir to a deceased individual. Heirs may have a right to any property not covered by the deceased's will; therefore, even if the deceased left a valid will, heirship may come into play. Those with questions about specific wills or heirship proceedings should consult an estate law professional.
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Wills
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A will is a legal document, created during an individual's life, that explains in detail what that individual wants done with his real and personal property after his death. A will must meet certain legal requirements, determined by the law of the jurisdiction in which the will is submitted to probate, in order to control the disposition of property.
Inheritance
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Contrary to popular perception, inheritance is not the act of receiving something under the terms of a will. Inheritance is actually what happens when no will (or other estate planning tool) determines what will happen to the deceased's property. At this point, the property is termed "intestate" and inheritance kicks in. Heirs are natural descendants of the deceased who gain a legal right to the intestate property. Each state's law has its own scheme for determining who constitutes an heir to the deceased and which heirs will have priority over others.
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Wills vs. Inheritance
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There are several reasons why both wills and inheritance may come into play after a particular individual's death. A will may only dispose of a portion of the deceased's property, leaving additional property that will go to heirs. Even if the deceased did create a will that covered all of his property, most wills must still pass through probate and be declared valid by a probate court. In cases in which the court finds the will to be invalid, and therefore legally inoperable, heirs will often be able to inherit all of the property that would have been willed away.
Heirship Affidavits
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Typically, those who wish to claim the property as heirs must first submit a document called an "affidavit of heirship" to the probate court and prove their status as an heir. Because a will may not cover all of the deceased's property, potential heirs may wish to sign and submit an affidavit of heirship even though the deceased left a will. Most states require the potential heir to notarize the affidavit, and the probate court may hold a hearing or some other type of proceeding to determine whether the heir's claim is valid. In a typical proceeding, each state will find a natural child of the deceased to be a valid heir.
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References
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