Sep 2, 2022 What Is an Affidavit of Heirship in New York?
The probate process was created to ensure that the assets and property in a decedent’s estate are transferred in an orderly manner to the persons whom the decedent named in their will, or if they left no will, to the family members who the state’s law of intestate succession designates as heirs at law. This system would fail unless everyone who might have a lawful claim to the decedent’s estate is identified and notified of the probate proceeding in the New York Surrogate’s Court.
An affidavit of heirship is the legal document listing all of a deceased’s heirs and other persons to whom a share of the decedent’s estate might be distributed. This blog post explains who needs to present an affidavit of heirship to the Surrogate’s Court, who can swear to its accuracy, and how the affidavit may also be used outside of the Surrogate Court.
Ely J. Rosenzveig & Associates has extensive experience in the New York Surrogate Court, representing the interests of various parties, and preparing and presenting all documents used throughout the probate process. When you need information about how New York’s probate process works, or you need skilled legal representation in any probate matter, Ely J. Rosenzveig & Associates can help you.
What Is an Affidavit of Heirship?
An affidavit of heirship is a document, sworn to under oath, that is submitted to the Surrogate’s Court definitively identifying all of the people who may have a legal claim to inherit the decedent’s assets or property. The affidavit identifies each possible “distributee” of the estate, and describes their relationship to the decedent.
The affidavit must be signed by a disinterested person, meaning someone who has no financial interest in the estate’s assets. Family members who stand to gain or lose something of value by omitting the name of another possible heir are barred from signing the affidavit of heirship.
However, the person who signs the affidavit (the affiant) must be familiar with the family tree of the decedent to be able to certify the accuracy of the list of heirs. When no person is familiar enough with the decedent’s family tree to attest to their surviving heirs from personal knowledge, or they are unable to identify or locate some of the decedent’s survivors, then they must attest that they searched with due diligence for the missing or unknown heir.
The Surrogate’s Court assumes that a diligent search for heirs was conducted if the affiant claims they performed the following searches:
- examined the decedent’s personal effects, including address books,
- inquired of decedent’s relatives, friends, neighbors, former business associates and employers, the post office, and financial institutions,
- corresponded to the last known address of any missing heir,
- corresponded or telephoned or searched the internet for persons of same or similar name in the area where the person being sought last lived,
- examined the records of the DMV and the board of elections for the last-known address of the person for whom they are searching.
Who Needs to Present an Affidavit of Heirship?
New York law requires the filing an affidavit of heirship in all petitions for probate or estate administration in which there is no known person to whom to distribute the estate’s assets, or
- there is only one distributee, or
- the only distributees are the decedent’s grandparents, aunts, uncles, or first cousins.
When there is only one person known or identified as a surviving heir or distributee, the law bars their spouse or any of their children from signing the affidavit of heirship. As we described above, they would not qualify as “disinterested” in the estate because they would stand to benefit as the spouse or child of the sole heir to the estate.
Using an Affidavit of Heirship Outside the Surrogate’s Court
When a decedent leaves an estate comprised only of real estate, the close surviving family members can avoid the expense and inconvenience of opening a probate estate in the Surrogate’s Court if they wish to sell the decedent’s real estate.
Here’s how it works:
When a piece of real estate is being purchased, the buyer (and their mortgage company) want to ensure that the seller has clear title to the property. Title insurance companies conduct a thorough title search to determine the legal owner of the property. In our scenario, assume the property remains in the name of the now deceased owner.
Instead of proceeding with a probate proceeding in court, an affidavit of heirship signed under oath by a disinterested person attesting to the identity and relationship to the decedent of each heir will usually be accepted by the title insurer as proof of ownership. The deed of sale would be signed by each of the heirs, formalizing the transfer of ownership to the buyer.
Another occasion on which an affidavit of heirship is used outside of the Surrogate’s Court is when a decedent’s surviving heirs need to obtain possession of the decedent’s personal property that may be in the custody of a third party, a bank, or a storage facility.
Information Included for Out of Court Affidavit of Heirship
When an affidavit of heirship is filed in the Surrogate’s Court, it is part of a series of documents which together contain all the relevant data about the decedent. But when an affidavit of heirship is being used outside the court for presentation to a title insurer or a bank, the contents of the affidavit need to provide more detailed information in addition to a clear statement identifying the decedent’s surviving heirs.
- The disinterested person signing the affidavit of heirship should be identified in detail, by name, age, place of residence, and their relationship to the deceased, and the length of time the affiant has known the decedent’s family. The more established and lengthier the affiant’s relationship is with the decedent and their family, the stronger the basis is for relying on the accuracy of the affidavit’s assertion.
- The affidavit should also include an affirmative statement that there are no other adopted, non-marital, or marital relatives nearer to the deceased than those identified in the affidavit.
- And as with an affidavit of heirship filed with the court, a diagram or table showing the decedent’s family tree should be attached when offering the affidavit in an out-of-court context.
The experienced trust & estate attorneys at Ely J. Rosenzveig & Associates concentrate their legal practice on matters relating to estate planning, and administration, elder law and special needs law, trusts, and probate. Our commitment to our clients and their families earned our firm a reputation as extremely trustworthy, knowledgeable, and effective legal counsel. We are here to help you creatively address your estate and probate matters the best way possible within the limits of the law.
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