Affidavit of Heirship and Identity

When someone dies, the heirs or devisees of the decedent generally wish for the decedent's assets, or the proceeds therefrom, to be transferred from the decedent's name to them. Depending on the asset, this process can be easy. For example, a brokerage account with a valid beneficiary designation can be re-titled in the name of the designated beneficiaries; the designated beneficiaries simply need to provide prove of their identity and the fact of the decedent's death to the financial institution.

The asset transfer process can also be difficult. If that same brokerage account is not associated with a valid beneficiary designation, the heirs may have to go through the probate process. Probate can be defined as the court-supervised process whereby a personal representative is appointed to administer an estate, the decedent's will (if any) is validated, assets are sold, creditors paid, and the remaining funds distributed to the heirs.

The Uniform Probate Code provides a number of alternatives to supervised probate administration. Unsupervised formal probate and unsupervised informal probate administration options are available and are common in Utah. A "small estate affidavit" is also a popular alternative and requires no court involvement at all. Any person claiming to be a successor can sign an affidavit saying they are entitled to property, and any person having custody of that property can transfer it without liability to the person presenting the affidavit if certain other statutory requirements are met.

A less-common alternative is an Affidavit of Heirship and Identity. The basis for such an affidavit is found in section 75-3-901 of the Utah Code, which makes it clear that, even without administration, heirs are entitled to receive estate assets: "Persons entitled to property by... intestacy may establish title thereto by proof of the decedent's ownership, his death, and their relationship to the decedent." Accordingly, only intestate heirs (not devisees under an unprobated will) can potentially use an Affidavit of Heirship.

Most third parties with custody of a decedent's property will prefer a small estate affidavit due to the protective provisions of section 75-3-1202 of the Utah Code. However, since a small estate affidavit cannot be used to change title to real estate, a transfer of an interest in real estate is the primary situation where I have seen a Affidavit of Heirship used. Unfortunately, title companies and title insurers do not usually permit Affidavits of Heirship when facilitating the transfer or insuring title of real property. Thus, while it is rare that an Affidavit of Heirship would be needed, it is another probate-avoidance tool that can be used in certain circumstances.


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