Testate or Intestate? Typically used to deal with real estate in intestate estates.
Assets Covered: Real estate.
Dollar Limitations: None.
Who Can Benefit? The heirs at law of the decedent under Mississippi’s laws of intestacy.
Who Must Sign/File? The heirship affidavit is usually signed by one or more family members and at least two unrelated parties.
An affidavit of heirship is a sworn statement of one or more family members and at least two unrelated parties that identifies the decedent’s legal heirs. These affidavits are sometimes used as an alternative to probate of real estate. If a number of years have passed since the decedent’s death, a probate attorney might record an affidavit of heirship to show that real estate has descended from the decedent to his or her heirs at law.
The use of heirship affidavits in lieu of probate is not specifically authorized by Mississippi law. Rather, it stems from common practices accepted by title insurance companies. If a title company will issue a title insurance policy on property, third parties can rest assured that they have good title to the property, even if there is an unprobated estate in the chain of title. So the goal of a Mississippi heirship affidavit is to give title insurance companies what they need to issue a title policy.
Because heirship affidavits are more of a practical than a legal solution, it’s not always easy to tell when an heirship affidavit will be accepted. A lot depends on the risk tolerance of the title company. Mississippi title companies will not usually accept an heirship affidavit if the decedent died recently. The title company will want to be sure that at least 10 years have passed so that all claims against the estate will be time-barred. And even if some time has passed, some title companies will insist on an Heirship Suit, at a minimum, to conclusively establish the decedent’s heirs at law.
For these reasons, heirship affidavits are usually accepted only as a last resort when many years have passed since the decedent’s death and there is no other way to conclusively determine heirs. Most title companies would be uncomfortable relying on an heirship affidavit prepared soon after a decedent’s death or in anticipation of an immediate transaction. It is good practice to put the heirship affidavit on record as soon as possible and allow as much time as possible to pass before attempting to convey title.
Probate Note: Mississippi law was amended in 2007 to clear up some confusion regarding affidavits of heirship. The law makes it clear that an heirship affidavit is prima facie evidence of the facts stated in the affidavit and of the marketability of title. This clarification was needed due to the Mississippi Supreme Court’s 2005 decision in Ferrara v. Walters. In Ferrara, the Court held that an Heirship Suit was the only effective way to establish marketable title to real estate after the death of an intestate owner. The amendment was intended to reinstate the pre-Ferrara practice of title companies of relying on heirship affidavits in some circumstances.