Disclaimer: This information is for educational purposes only and does not constitute legal advice. Consult a licensed attorney in Virginia for guidance tailored to your situation.
Detailed Answer
An heirship affidavit in Virginia establishes the legal heirs of a person who died without a valid will (intestate). You commonly use it to clear title to real estate or to collect personal property in a small estate. Virginia Code § 64.2-414 allows you to record an Affidavit of Heirship in the circuit court land records. For personal property under the small-estate threshold, Virginia Supreme Court Rule 8:2 sets out a Small Estate Affidavit procedure.
Step 1: Confirm Eligibility
- The decedent died intestate (no valid will).
- No administration proceeding is pending in any Virginia court.
- For personal property only: the total estate value does not exceed $50,000 (see Rule 8:2).
Step 2: Gather Required Information
- Certified death certificate of the decedent.
- Full names, addresses, and relationships of all heirs at law (spouse, children, parents, siblings, etc.).
- Legal description of any real estate involved.
Step 3: Draft the Affidavit
Use the format prescribed by Virginia Code § 64.2-414. Your affidavit should include:
- Affiant’s full name and address.
- Decedent’s full name, date of birth, date of death, and last residence.
- Statement that no will exists and no administration is pending.
- List of all heirs with their relationships to the decedent.
- Signature of the affiant and notarization.
Step 4: Notarize and Record
- Sign the affidavit before a notary public.
- For real property: record it in the clerk’s office of the circuit court where the land lies. See Virginia Code § 64.2-414 for recording requirements (link).
- For personal property: file under Rule 8:2 in the appropriate court and serve required notices to heirs.
Step 5: Use the Recorded Affidavit
- Present the recorded affidavit to the land registrar or title company to transfer real estate.
- Provide copies to banks or other holders of personal property to claim assets.
Key Statutes and Rules
- Virginia Code § 64.2-414: Affidavit of Heirship (Real Property) – https://law.lis.virginia.gov/vacode/title64.2/chapter4/section64.2-414/
- Virginia Supreme Court Rule 8:2: Small Estate Affidavit (Personal Property) – see Virginia Courts Rules Book
Helpful Hints
- Verify all heirs’ names and relationships to prevent title disputes.
- Obtain multiple certified death certificates early.
- Use the exact legal description from the most recent deed.
- Confirm no probate proceeding exists anywhere in Virginia.
- Keep certified copies of the recorded affidavit for your records.