In this overview, we will delve into the Affidavit of Heirship, how it fits into Florida’s Probate laws, and what information you’ll need to gather.
What is an Affidavit of Heirship?
An Affidavit of Heirship is a legal document that serves to officially identify the living heirs of a deceased property owner, especially in scenarios where the deceased did not leave a will. It officially the legal heirs of the deceased and should contain all pertinent information to ascertain the living heirs. The affidavit can be used to establish ownership of properties when the original owner passes away without a will, known as dying intestate, and is generally utilized when the deceased only left real property, personal property, or had a small estate.
In Florida, Affidavit of Heirship is not typically used in the probate process. Instead, heirs are identified as part of the Petition for Probate filed with the probate court. Just as an affidavit is a sworn statement, the petition for probate must be signed by the petitioner and verified under oath. In that respect, Florida law essentially does away with the stand-alone Affidavit of Heirship that may be used in other states, in favor of simply providing the same information in the Verified Probate Petition.
Moreover, in Florida, Homestead property may not be excluded from the probate estate. It is important to consult with a Probate attorney to determine whether your loved one’s property qualifies.
The Process Behind an Affidavit of Heirship
While the process for creating an Affidavit of Heirship is generally straightforward in other states, in Florida the information that would be provided in an Affidavit of Heirship is instead included in the Verified Probate Petition.
Initiation
- The process starts with identifying the need for a sworn statement of the names of the deceased’s known heirs and their relationship to the decedent, usually when a person dies intestate (without a will), and there is a need to transfer ownership of his or her property to legal heirs.
Drafting
- The sworn statement should include the names and addresses of all known heirs and beneficiaries. The “Affiant,” in this case the Petitioner, is the person swearing to the facts in the Verified Probate Petition.
- The document should detail the deceased person‘s heirs, the property in question, and the rightful inheritors of the property.
- Note that this may not be necessary if the decedent’s property was Homestead property under Florida law.
Verification
- The Probate Petition should be signed by the Petitioner, ideally someone who knew the deceased and their family.
- It should be “Verified,” signed under oath; however, the use of a notary public may not be necessary.
- Generally, witnesses should be disinterested parties, meaning they aren’t heirs or family members of the deceased.
Filing
- The Verified Probate Petition should be filed with the probate court, typically in the county where the decedent lived at the time of their passing.
- If real estate is transferred as a result of the Probate action, other documents may need to be filed with the county recorder’s office where the property is located, pending the outcome of the probate administration in the local court.
What Does an Affidavit of Heirship Include?
Here’s a detailed breakdown of the information typically included a Verified Probate Petition:
Decedent’s Information:
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- Information that sufficiently identifies the decedent, including the full legal name, last known address, last 4 digits of the social security number, date and place of death, and state and county of the decedent’s residence.
Personal Representative’s (Executor’s) Information:
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- Information that sufficiently identifies the Personal Representative (Executor) named in the decedent’s will, or if there was no will, the person requesting appointment as the Personal Representative, including the full legal name, personal address, and statement of interest.
Heirs’ Information:
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- Information that sufficiently identifies all known beneficiaries, including their full legal names, addresses, relationship to the decedent, and the year of birth if any beneficiaries are minors.
Property Details:
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- Information sufficient to identify the decedent’s assets, including their approximate value and description.
Affidavit of Heirship and the Probate Process
Let’s explore how an affidavit of heirship document fits in the probate process.
An affidavit of heirship is not an alternative to probate in Florida. The same information that would otherwise be included in an Affidavit of Heirship used in a different state is included in a Florida Probate Petition. It tells the probate judge and those interested in the probate proceedings (beneficiaries and heirs) who is next in line to inherit estate property, particularly when there isn’t a will.
The probate court’s job is to figure out what property goes to which family members.
How to Prepare for Filing a Verified Probate Petition in Lieu of an Affidavit of Heirship
To prepare for filing a Verified Probate Petition, follow these steps and tips:
1. Gather Familial Information
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- Prepare a complete family history including the name and address of the deceased, date of death, place of death, marriages, divorces, and a list of family members, including spouses, parents, siblings, children, nieces, and nephews.
2. Identify Legal Heirs
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- Identify the legal heirs, especially if the deceased didn’t leave a valid or enforceable will.
3. Prepare the Document
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- Florida law typically requires a probate petitioner to hire an attorney to represent the prospective personal representative in the probate action. The attorney should draft the Probate Petition accurately based on the information provided by the petition. It’s a legal document that the Petitioner verifies under oath, providing the named individuals as legal heirs. It’s used especially when a person dies without a will and the court needs to determine the estate distribution.
4. Verify and File
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- Once reviewed and Verified by the petitioner or prospective personal representative, the probate petition is filed with the probate court in the relevant county’s Circuit Court.
Frequently Asked Questions
What is Heirship?
Heirship is the legal right to inherit assets when someone dies without a will. Typically, the heirs are close family members like children or parents, and Florida intestacy laws determine who these heirs are and how the assets are divided among them.
What is an Affidavit of Heirship?
An Affidavit of Heirship is a legal form used to identify the legitimate heirs when someone dies without a will. This document helps transfer property like houses or land to the deceased’s family in other states. In Florida however, this information is instead included in the Verified Probate Petition filed by the prospective Personal Representative (aka Executor).
How Can a Lawyer Help?
A probate lawyer, while typically required by the Florida Probate Code, helps prepare the Probate Petition by collecting essential information and ensuring that it is drafted accurately. Having a lawyer simplifies the process and ensures that legal protocols are followed, which is important for the legal transfer of the deceased’s assets to the heirs.
Why do you Need Help with Florida Probate?
If your loved one has died without a will, you may be feeling concerned about what comes next. You want to ensure that your loved ones’ property is properly distributed to the decedent’s family.
Here’s Why You Need Help From an Estate Planning Attorney:
- Protection of Rights: In cases where there are multiple claimants or disputes over the inheritance, having legal assistance can be invaluable in settling the matter swiftly and ensuring the rightful heirs receive their inheritance.
- Verification and Notarization: The document typically needs to be signed by two witnesses who aren’t beneficiaries named in the affidavit, and some jurisdictions may also require a notary public’s signature for additional verification. Legal assistance can help ensure that all signatures and notarizations are correctly done.
Legal assistance ensures that the process is handled accurately, efficiently, and in accordance with Florida’s Probate Code and Probate Rules. Reach out to William C. Roof. Get the advice you need to make sure everything goes smoothly.
The contents of this article are not comprehensive, they provide only a general overview of the subject matter discussed. This article does not establish a client-attorney relationship with the reader, and no legal decisions should be made based on the article’s contents. Because every legal matter arises under unique facts specific to the client, no legal decision should be made without consulting a licensed attorney.
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