Short answer: A Florida affidavit of heirship is a sworn statement of family facts, such as who the decedent married and who their children are. It is not a court order and does not by itself transfer property. A bank or title company may accept one for limited purposes, or may require probate or a court determination of beneficiaries.
Families are often told that a signed affidavit will take care of a loved one’s house or bank account. Sometimes the request comes from a title company. Sometimes it comes from a bank, or from a relative who handled an estate in another state. In Florida, the affidavit can be a useful document, but it is easy to expect more from it than it can do.
Whether an affidavit is enough depends on who is asking for it and why.
What an affidavit of heirship is
An affidavit of heirship (sometimes called an affidavit of heirs) is a written statement, signed under oath, that sets out facts about the decedent’s family. It typically covers:
- whether the decedent was married, and to whom;
- the decedent’s children;
- which family members have died; and
- that no will is known.
Who signs it matters. The signers are typically disinterested people who knew the family, rather than the heirs themselves. Whether the affidavit is recorded in the public records, and how, is also a practice question.
What it isn’t
The affidavit is a statement of facts. It does not decide anything.
| An affidavit of heirship is | An affidavit of heirship is not |
|---|---|
| A sworn statement of family facts | A court order or court ruling |
| Signed by people who knew the family | Probate |
| Something a bank or title company may ask for | A deed |
| One piece of information about who the heirs are | Binding on people who were not part of it |
There is no general Florida statute that makes an affidavit of heirship transfer title to property. An affidavit may help a bank or title company understand the family, but on its own it does not move ownership from the decedent to the heirs.
Who inherits when there is no will is decided by Florida’s intestacy statutes, not by the affidavit (Fla. Stat. §§ 732.102 and 732.103).
Affidavit vs. a court determination of beneficiaries
Florida has a court process built for the question an affidavit tries to answer. Under Fla. Stat. § 733.105(1), when property passes by intestacy, or the will is unclear, and there is doubt about who is entitled to receive it or what their shares are, any interested person may petition the court to determine beneficiaries.
The court’s order carries weight that an affidavit doesn’t. A personal representative who acts under that order is fully protected (Fla. Stat. § 733.105(2)). And when no estate has been administered, a separate civil action is available to determine beneficiaries (Fla. Stat. § 733.105(3)).
The difference comes down to this:
- A court determination of beneficiaries is an order entered by a judge after a court process.
- An affidavit of heirship is a private statement signed by people who knew the family.
When a title company or bank asks for one
A title company or bank may ask for an affidavit of heirship for its own reasons, such as underwriting or internal rules. Practices vary, and the affidavit is often one item on a longer list. Even with an affidavit, the company may still require:
- a probate administration;
- summary administration, a shorter court process that some estates qualify for (see our article on Florida summary administration); or
- a court order, such as a determination of beneficiaries.
Before anyone signs, it helps to ask:
- What is the affidavit meant to accomplish?
- Will it be enough on its own, or is it one step among several?
- What else will you need before you can act?
If the answer is that probate is required, a personal representative will need to be appointed. Our guide to a personal representative’s first 30 days covers the early steps, and the Florida probate inventory piece covers one of the later ones. If estate property needs protection before anyone is appointed, see Florida estate curators for that option.
The “other state” trap
Some states use heirship affidavits more broadly than Florida does. Relatives who handled an estate somewhere else may expect the same document to work here. It may not. A document that settled things in another state may be only a starting point here.
Living out of state can matter in another way, too. If probate is needed, Florida lets a nonresident serve as personal representative only if the person fits one of the family relationships the statute lists (Fla. Stat. § 733.304). Our article on out-of-state personal representatives explains who qualifies.
If there’s a will
An affidavit doesn’t replace probating a will. If there is a will, Florida law still requires anyone holding the original to deposit it with the clerk of the court within 10 days after learning of the death (Fla. Stat. § 732.901(1)). An affidavit that describes the family does not change that duty.
If the property is the decedent’s Florida home, homestead rules may also limit what the will can do. Our article on Florida homestead devise restrictions explains when those limits apply.
Avoiding this for your own family
Much of the uncertainty an affidavit tries to resolve can be addressed while you are alive. A clear estate plan, with documents that work together, can leave your family with fewer questions to answer after you’re gone. Our articles on whether a will is enough in Florida and on adding an adult child to a joint bank account are good places to start.
Frequently Asked Questions
What is an affidavit of heirship in Florida? It is a sworn written statement of family facts, such as the decedent’s marriage, children, family members who have died, and that no will is known. It is not a court order.
Can an affidavit of heirship transfer a Florida house? Not by itself. There is no general Florida statute that makes an affidavit of heirship transfer title. A title company may accept one for limited purposes, or may still require probate, summary administration or a court order.
What is the difference between an affidavit of heirs and a determination of beneficiaries? An affidavit is a private statement signed by people who knew the family. A determination of beneficiaries is a court order under Fla. Stat. § 733.105. A personal representative who acts under that order is fully protected (Fla. Stat. § 733.105(2)).
Who signs an affidavit of heirship? Typically disinterested people who knew the family, rather than the heirs themselves.
What if there’s a will? The will still has to be deposited with the clerk within 10 days after the holder learns of the death (Fla. Stat. § 732.901(1)), and an affidavit doesn’t replace probating it.
Talk with us about what you’ve been asked for
If a bank or title company asked you for an affidavit of heirship, it helps to find out what they actually need before anyone signs, and whether probate or a court order is the better path.
Volusia, Flagler and Seminole County families work with The Law Offices of Brian Giaquinto on probate administration at our Daytona Beach office. Brevard County clients meet with us by appointment at the Suntree Business Center in Melbourne. Our probate and trust administration page has more detail. Schedule a free consultation: call (386) 244-9633 or use our contact page. Other posts are in the Legal Insights library.
This article is for general educational purposes and is not legal advice. Reading it does not create an attorney-client relationship. Statutes and case law change; consult an attorney about your specific situation.