Do You Need An Heirship Affidavit in Tennessee?
I’m Brad Woodall with ProbateResource.com. Today, I’m joined by April Jackson from Tennessee, and we’re back to discuss some various topics.
Today, I want to talk about heirship affidavits. Not all states have heirship affidavits, but in my experience, I believe they can be quite beneficial.
Many families may only have a house, a car, or a few assets, and going through the entire probate process just to sell a single item can be quite inconvenient.
April, could you explain when someone would use an heirship affidavit versus when it might not be applicable in Tennessee? Where does this come into play?
An affidavit of Heirship is specific to real estate in Tennessee. While we also have an affidavit of inheritance for vehicles, the affidavit of heirship serves to establish a chain of title from a deceased individual to a living heir who is inheriting property.
In Tennessee, best practices recommend that the person leading the affidavit should not be the individual who is inheriting the property. Instead, this person could be a cousin, another family member, a neighbor, or someone who had a relationship with the deceased through a faith community.
The person signing the affidavit needs to have personal knowledge and belief regarding the property and the individuals named in the affidavit as the heirs. This could involve piecing together information, such as knowing that Ms. Susie lived at 123 Main Street and had stated she owned the house, as well as knowing she had two children, Jane and Jack. Therefore, the affidavit would explain that 123 Main Street belonged to Ms. Susie and now belongs to her children, Jane and Jack. In summary, an affidavit of airship is necessary anytime someone has died without a joint owner.
When Survivorship Ends and Heirship Begins
If you own a property with survivorship in Tennessee, it must be specified as being held in joint tenancy with the right of survivorship. This can also apply to properties owned jointly by spouses. In such cases, if one owner passes away, the surviving spouse or joint tenant automatically inherits the property without going through probate.
However, when the surviving owner eventually passes away, you’ll need to file an affidavit of heirship.
At our office, we handle these affidavits as part of our probate services, but sometimes we recommend letting your title company manage it, especially if you’re selling the property. The distinction here is whether you’re selling it or planning to hold onto it for a while.
It’s important to find someone who has a strong and trustworthy relationship with the family involved. Either we or the title company will record the affidavit of heirship. Once this is recorded in the register of deeds office, it serves as public notice that a particular person owns the property.
While the affidavit of heirship itself does not conclusively prove ownership, it establishes a rebuttable presumption that the listed individuals own the property. If anyone wishes to challenge this presumption, they have 20 years to do so. However, challenges to affidavits of heirship are rare. Keep in mind that the title company will consider these factors when you decide to sell the property.
Brad:
First of all, title companies play a crucial role in real estate transactions because they hold title insurance. Most mortgage companies require title insurance before approving a mortgage on a property, and they need to ensure the title is clear. This makes complete sense.
Title Insurance and Avoiding DIY Disasters
In my experience, I’ve had two title claims during my career in real estate: one a few years ago and another recently. Title insurance is definitely beneficial.
As an additional piece of advice, if you’re involved in a sale, always consider purchasing title insurance. Although it’s not mandatory, I highly recommend it. Furthermore, when conducting a real estate sale, ensure you have either a real estate attorney or a title company facilitating the transaction. I’ve witnessed many issues arise from improper handling of title matters.
For instance, we were scheduled to close on a property this week, but there was a complication. The seller and her neighbor had executed a quitclaim deed over a small section of the driveway because the neighbor’s driveway was encroaching onto her property. They attempted to fix it on their own by using a DIY quitclaim deed they found online. Unfortunately, they did it incorrectly, which means my attorney must now resolve the issue. To close and obtain an insurable title, we need a corrective deed. This requires us to track down the neighbor, get in touch with her, and have her sign the necessary documents, which must be notarized and witnessed.
It’s important to handle these matters properly from the beginning. Depending on your state, you might work with title companies and attorneys. For example, in Tennessee, there are both title companies and attorneys who can assist with transactions. One attorney firm I often work with in Atlanta also has an office in Nashville; I’ve closed deals there for properties in Georgia before. Thanks for clarifying the airship affidavits; they can indeed save a lot of time in the process.
Yes, especially since I know some states have a transfer-on-death deed. This allows you to specify in writing who should inherit the property.
However, Tennessee does not have this option, so using an affidavit of heirship or holding joint title is really the only way to clear up the title when someone has died and purchased property, particularly when it’s not a standard buyer-seller transaction.
Brad:
If you’ve heard of the affidavit of heirship and need assistance in filling one out, I believe April has resources available. For any real estate or probate situations, especially regarding inheritance, it’s always advisable to consult an attorney to ensure you’re handling everything correctly. This may involve some costs, which is often the case, but it’s worthwhile to ensure you’re doing things properly.