Why might heirship affidavits be needed?
In some instances, real property informally passes from one generation to another generation without proper formalities being recognized and respected; this generally occurs when someone with an ownership interest in real property dies without a will (intestate). Inevitably, this practice creates significant problems for heirs at some point in the future. After generations have passed, there can be obstacles to pursuing traditional methods of formally transferring real property from a decedent to heirs. An heirship affidavit is one potential means of resolving title issues in such cases.
Who should execute the heirship affidavits?
Heirship affidavits must be executed by at least one member of the decedent's family and two or more unrelated parties. These individuals must have personal knowledge of the decedent's heirs.
Where are heirship affidavits recorded?
Heirship affidavits "shall be recordable in the land records in the office of the chancery clerk in the county where the real estate is situated." Miss. Code Ann. § 89-5-8(1).
What are the barriers, if any, to using heirship affidavits?
For a period of time following the Mississippi Supreme Court's decision in Ferrara v. Walters, the value of heirship affidavits was in doubt. However, within a few years, the Mississippi Legislature enacted legislation addressing the issue. Due to the aforementioned legislation, an heirship affidavit is "prima facie evidence of the facts stated therein and the marketability of the title to real estate." Miss. Code. Ann. § 89-5-8(3).
Nevertheless, some barriers still exist. When a seller/grantor executes a warranty deed for the benefit of a buyer/grantee, title insurance companies are often involved in the transaction. Since title insurance companies guarantee that the seller/grantor has good title to transfer to the buyer/grantee, the company's policies often dictate whether heirship affidavits will be accepted. For instance, heirship affidavits are unlikely to be accepted by title insurance companies in the following circumstances: (1) the individual claiming ownership of the subject property died within a few years and the statute of limitations on claims against the estate remains open, or (2) heirship affidavits are executed in contemplation of an immediate transfer of the subject property. Therefore, it is vital to ascertain the title insurance company's position on the issue in light of the specific facts of a case.
In summary, heirship affidavits remain a viable solution in certain circumstances, but they are not a viable solution in all cases.