Affidavits of Heirship

Tuesday, December 12, 2017

    Affidavits of Heirship can be used to transfer assets of some kinds when the owner is dead, and there is not going to be a probate or a small estate proceeding.

    The DMV has an affidavit of heirship that it provides if the asset is a car or other vehicle registered through the DMV.

    The banking statutes provide that an Affidavit of Heirship can be used provided that there is less than $25,000 total in all bank accounts which are owned by the deceased depositor.

    There are similar statutes that allow an Affidavit of Heirship for accounts at credit unions.

    There are limits on when these affidavits can be used.  In particular, as regards banks and credit unions, there must be an opportunity for the State of Oregon to seek to recover money spent for care of the decedent (such as through Medicaid) before some heirs may take the property with an Affidavit of Heirship.

    In general, with an affidavit of heirship, ALL of the heirs must cooperate, although there are some exceptions to this.

    Heirs are the people who would receive property if there were a probate, and there was no will.  In general, the surviving spouse is an heir.  If there are children who are not also the children of the surviving spouse, then the surviving children are also heirs.  If there is no surviving spouse, the children are the heirs.  If a child is dead, the grandchildren generally step into the deceased child’s shoes.  If there is no spouse and no descendant, then the parents are the heirs, but if they are gone, then the siblings of the decedent are the heirs.  If a sibling is gone, then the descendants of the sibling step into the sibling’s shoes.  If there is nobody else , then you go up one step further, to the grandparents, and their siblings, and their siblings’ descendants.

    In general, the people who take an asset because of an Affidavit of Heirship remain liable if there is a creditor who is found.  If a probate is later filed, the heirs who took assets under an Affidavit of Heirship will either have to turn the asset over to the newly appointed personal representative (executor), or account for the funds to the personal representative.