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What is an affidavit of heirship?

By Team July 11, 2021

By Nevin Clinton Team,

    An affidavit of heirship is a written statement which verifies that an individual is a legal heir when he dies without leaving behind a will. The affidavit helps in transferring the property of the deceased to the individual named in the document. It is also used to identify the legal heirs of the deceased to a court. Before delving into the need for the affidavit of heirship and its essentials, it is essential to understand who a legal heir is and what is heirship.

    Heirship is an individual’s right to receive a share of the property of a person who died intestate i.e. without a will. The person who has the right is called a legal heir and it is usually children, descendants, and relatives of the deceased who are the heirs. An affidavit on the other hand is a written statement that can be used as evidence by the court. So an affidavit of heirship is essentially a written statement that confirms an individual as an heir. 

Need for an affidavit of heirship
    It is worth noting that even without a will as well as an affidavit of heirship, a probate court will review the deceased’s debts and determine how his property will be distributed among the legal heirs. But this process is extremely lengthy and risks incurring huge expenses as well. Therefore, if all the legal heirs agree to an affidavit of heirship, the process will be made simpler and the probate court needn’t take the burden of making decisions on distributing the property. 

    Further, even if a will was made by the deceased, an affidavit of heirship can be drafted. This is once again to save time but the affidavit must be similar to the actual will and the wishes of the deceased. If a case arises where the affidavit’s statements contradict those in the will, it is the former which will be considered invalid.

Essentials of an affidavit of heirship

  • Details of the affiant: First and foremost, the affidavit of heirship must have all details on the person filing it. Name, address, contact details, and the like must be provided in the very beginning.
  • Declaring relation with deceased: The relationship of the affiant to the deceased person and details on the death of the said person must be mentioned. The cause of death if known must be provided as well. 
  • Details on the deceased: The name, address, contact details, and other details on the heirs of the deceased person must also be given in the affidavit.
  • Detail on the property: Complete details on the property and debts of the deceased person, if known, must be mentioned in the affidavit. 
  • Signatures: The affidavit of heirship must be signed by the affiant, the notary who is officiating proceedings, and preferably by a third party attesting to the fact that the information mentioned in the document is true. After the affidavit is drafted and signed, it has to be filed at the concerned court. 

    Apart from the aforementioned, it is necessary that the basic requirements while drafting an affidavit must also be kept up with. The Kerala High Court in K. Chandrasekharan vs C. Sasidharan Pillai And Ors. laid down certain essentials. Firstly, while providing a piece of evidence, there must be documents and sources to back it up. It is necessary that proof in the form of particulars must be given. If there is no proof and if it’s up to the court to decide on a matter, the affiant must not merely state that he is of the belief that something is true. He must mention the grounds as to why he believes so. So, the aforementioned points must be kept in mind as well while drafting an affidavit of heirship. 

Affidavit of heirship is an important document and it is advisable that legal personnel draft it

    It is always preferable to have an attorney or a legal professional familiar with the process to draft the document. This would ensure that key details and essentials are not missed out. If such a mishap happens, the affidavit will be considered invalid and a new document will have to be drafted.

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Tags: Affidavit , Heirship , Heir , Affidavit of Heirship , Transfer Of Property , Legal Heir , Process of Transfer of Property

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