Detailed Answer
Under Georgia law, an affidavit of heirship (often called an heirship affidavit) lets surviving family members establish who inherits property when someone dies without a will. You can use this document to transfer real estate or other assets without formal probate. Below are the key steps to prepare, execute, and record an heirship affidavit under O.C.G.A. § 53-2-40.
1. Confirm Eligibility
• The decedent must have died intestate (without a valid will).
• No formal probate administration has occurred for the estate.
• All parties signing the affidavit must have personal knowledge of the family history and heirs.
2. Gather Required Information
• Full name and address of the decedent.
• Date and place of death.
• Legal description of the real estate or list of personal property involved.
• Names, ages, and addresses of all known heirs at law (spouse, children, parents, siblings, etc.).
• Relationship of each heir to the decedent.
3. Draft the Affidavit of Heirship
Create a document titled “Affidavit of Heirship.” It must include:
- A statement that the affiants (the persons swearing the affidavit) have personal knowledge of the decedent’s family history.
- A clear recitation of all known heirs and their relationship to the decedent.
- A legal description of the property subject to transfer.
- A certification that no probate administration has been opened, and no will was admitted to probate.
- References to O.C.G.A. § 53-2-40 (https://law.justia.com/codes/georgia/2010/title-53/chapter-2/article-4/section-53-2-40/).
4. Have Affiants Sign and Notarize
• At least two disinterested witnesses (often close relatives who aren’t inheriting) must sign the affidavit under oath.
• Use a Georgia notary public to acknowledge each signature. The notary block should comply with O.C.G.A. § 45-17-5.
5. Record the Affidavit
• Take the notarized affidavit to the Superior Court Clerk’s office in the county where the property lies.
• Pay the recording fee (varies by county).
• Once recorded, the affidavit gives constructive notice of heirs and can be used to clear title or facilitate transfers.
6. Distribute Copies to Interested Parties
Provide certified copies of the recorded affidavit to title companies, banks, or any entity handling the property transfer. Keep the original in your records.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For guidance tailored to your situation, consult a qualified Georgia attorney.
Helpful Hints
- Verify death certificates and marriage records to confirm family relationships.
- Interview multiple relatives to avoid missing any heirs.
- Use precise legal descriptions to prevent title disputes.
- Check county clerk websites for current recording fees.
- Keep backup copies of all documents in a secure place.