What Is an Affidavit of Heirs in a Florida Probate?

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By Gary M. Landau, Esq.

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What Is an Affidavit of Heirs in a Florida Probate?

What happens when someone dies in Florida and they have assets but they didn’t have a will? Their estate can still be probated according to Florida law.

One important document that comes into play in this situation is an affidavit of heirs. This document helps the probate court determine who are the proper heirs so the Florida probate process can proceed.

Whether the estate is large and/or newer and requires a formal administration or is small or old enough to be done with a summary administration, an affidavit of heirs is always required when someone dies without a will (legally known as dying intestate). Some counties in Florida also require this document in cases where there is a valid will, but this is much less common.

Read below to learn what an affidavit of heirs is in a Florida probate, when it is used, and how Florida intestate succession affects heirs, assets, and estate administration. Then contact the Law Office of Gary M. Landau, P.A. to schedule a free consultation to identify the next steps for your unique situation.

At-a-Glance Summary

Here are the important points we will detail below about the affidavit of heirs in Florida probate:

  • An affidavit of heirs is a sworn statement identifying all the heirs of a deceased person.
  • The document is commonly used in probate cases where no valid will exists, and occasionally in other cases.
  • The affidavit clarifies family relationships for the probate court.
  • Florida intestate succession laws determine which relatives inherit when a person dies without a will.
  • A surviving spouse, children, or other family members may inherit based on Florida law.
  • Summary administration and formal administration can both involve this affidavit.
  • Incorrect information in an affidavit can lead to probate disputes and court challenges.
  • A Florida probate attorney can help families address probate administration and estate distribution questions.

What Is an Affidavit of Heirs?

An affidavit of heirs is a sworn statement used during the probate process to identify all of the heirs of a deceased person (known as a decedent). The affidavit is several pages long, and requests information on relatives living and deceased, including a spouse, children, adult grandchildren, parents, siblings, and others.

The document is typically created and signed by a close family member or someone else with knowledge of the person’s entire family. The signing must be notarized by a licensed notary public.

In Florida probate, the affidavit helps establish:

  • The identity of a surviving spouse, if there is one
  • The names of all children or, if there are no children, other close relatives
  • Whether the person had a valid will when they died
  • Whether any children or other close relatives died before them (in which case their children might inherit their share)
  • Whether additional heirs may have an interest in the estate

The existence of the affidavit does not replace probate administration. And it does not automatically transfer ownership of any assets.

Rather, the affidavit serves as supporting information to assist the probate court during the administration of the estate.

When Is an Affidavit of Heirs Used in Florida Probate?

An affidavit of heirs is commonly used in cases involving intestate succession. Under Florida law, intestate means a person died without a valid will.

(See What happens when someone dies without a will in Florida.)

In these situations, the probate court must determine who inherits the person’s assets. This is done according to Florida statutes. The affidavit helps clarify family relationships in order to identify potential beneficiaries.

In addition to its use when someone dies without a will, the affidavit is also sometimes used in other cases, such as:

The affidavit may also become important later if family members disagree about inheritance rights.

In some counties in Florida, judges require an affidavit of heirs in all probates, including those where a will exists. They want to ensure no person who has inheritance rights under the law are excluded from the process.

(See What you need to know about Florida probate rules.)

How Florida Intestate Succession Affects Heirs

Florida intestate succession laws determine how assets are transferred when no valid will exists. The Florida Probate Code outlines who may inherit from the person’s estate, based on the closeness of the family relationship.

For example:

  • A surviving spouse typically inherits the entire estate when there is no will
  • However, if there are children from another relationship, this can affect the spouse’s share
  • Adopted children are considered as regular children under Florida law
  • Stepchildren are different, though, and typically do not inherit when there is no will, unless they have been adopted
  • If there are no spouse or children, assets pass to other blood relatives, including parents, siblings, or other heirs in a step-wise manner

Florida intestate succession can become complicated in families involving remarriage, children from multiple relationships, or disputed family history. Questions involving marriage ceremony validity, family relationships, and legal standards may require additional court review.

An affidavit of heirs can help the probate court determine the proper intestate share for potential beneficiaries.

What Information Is Included in an Affidavit of Heirs?

Although the exact format can vary, an affidavit of heirs generally includes information about the deceased person and their heirs, including:

  • The decedent’s full legal name
  • Date of death
  • Information about a surviving spouse if there is one
  • Names of all children and/or grandchildren
  • Information about other close relatives, living or deceased
  • Whether the decedent had a last will
  • The identity of individuals with an ownership interest in estate assets

The affidavit is filed as part of the Florida probate process and may support other probate filings during probate administration.

Does an Affidavit of Heirs Avoid Probate?

No, an affidavit of heirs does not avoid probate in Florida.

Families sometimes assume if a spouse or living children are named in the affidavit, its creation automatically transfers ownership of assets to them. Florida probate law mandates a probate administration when there are probatable assets, even if there is only one or a few beneficiaries.

Assets titled solely in the deceased person’s name, whether they died with a will or without one, generally require a probate before ownership of the assets can be transferred.

Certain assets do not have to go through probate, passing directly to people named on the account or the deed. This includes:

  • Real estate with joint tenancy ownership
  • Bank or investment accounts that list beneficiary designations before the person’s death
  • Bank or investment accounts listing a specific person or persons to pay-on-death (POD)
  • Revocable trusts listing a successor trustee
  • Assets transferred outside the probate estate, such as life insurance policies.

Summary Administration vs. Formal Administration

Florida probate cases generally proceed one of two ways, either via summary administration or formal administration. This is true whether or not the person had a valid will before they died. (Although having the will makes the probate process easier, faster, and less expensive.)

Summary Administration

Summary administration in Florida may be used for a probate if:

  • The probate estate value falls below statutory thresholds, or
  • More than two years passed since the person died.

This process is often faster than a formal administration.

When there are a lot of creditors or other complications surrounding the estate, the summary administration may not be the best route even when it otherwise qualifies.

Formal Administration

Formal administration involves a more structured probate process. It is used for larger estates when fewer than two years have passed since the person died.

Formal administration typically involves:

  • Appointment of a personal representative to oversee the estate.
  • Opening an estate bank account
  • Gathering all estate assets
  • Ensuring creditors are notified of the estate, then paying all valid claims
  • Addressing disputes among beneficiaries
  • Handling real property transfers

In either type of Florida probate proceeding, an affidavit of heirs helps to clarify inheritance issues, especially when the person died without having a valid will.

Common Probate Disputes Involving Heirs

Probate disputes can arise when family members disagree about inheritance rights, ownership interests, or the validity of the will or the affidavit of heirs.

These disputes may include heirs that feel they were omitted from an affidavit of heirs, questions about the paternity of a child, challenges to a marriage ceremony that may make it illegitimate, disagreements over personal or real property ownership, and many others.

Because probate disputes can delay estate administration and asset distribution, families often benefit from speaking with a probate attorney early in the process.

FAQs About Affidavits of Heirs in Florida Probate

Is an affidavit of heirs legally binding?

The court considers an affidavit of heirs a sworn statement signed under oath. The probate court reviewing the information may still require additional evidence or testimony.

Who signs an affidavit of heirs in Florida?

The affidavit is usually signed by a person familiar with the deceased person’s family relationships, often a close relative or another individual with personal knowledge of the family history.

Can an affidavit of heirs transfer assets in Florida?

No. This requires additional probate administration steps before ownership of any assets is transferred after a person dies.

What happens if an heir is left out of the affidavit?

The person signing the affidavit must be truthful to the court about all heirs. If they intentionally lie, such as leaving out a sibling they have no communication with, they can be charged with a crime.

If someone is inadvertently omitted or the person signing it did not know of their existence (such as a child the parent kept secret), that heir can challenge the estate distribution or raise claims in probate court. This can delay probate administration and increase disputes among family members.

Does Florida require an affidavit of heirs in every probate case?

No. The need for an affidavit depends on the facts of the probate case. This affidavit is almost always required when the person died without a will, or intestate, but it is sometimes used in cases where there is a will as well.

Can a surviving spouse inherit everything in Florida?

Sometimes. Under Florida intestate succession law, a surviving spouse inherits the entire estate if the person who died does not have children from another relationship.

If they do have such children, the surviving  spouse inherits half of the estate and those children get the other half.

Probate and Estate Planning Guidance for Coral Springs Families

Families in Coral Springs and throughout Broward County often face probate questions involving probate administration after a loved one’s death, especially if the person died without a will. Florida probate cases involving blended families, multiple beneficiaries, or unclear ownership records can be especially complicated, but even simple estates require an understanding of the Florida probate process.

Family members can help their own descendants by creating an estate plan during their lifetime. This reduces disputes and simplifies estate administration for family members down the road.

These documents include a valid will, a living will and healthcare surrogate for end of life care, up-to-date beneficiary designation forms on all investments, real estate deeded out the correct way for their individual situation, and potentially a revocable trust.

Speak With a Coral Springs, Florida Probate Attorney

If you have questions about an affidavit of heirs, Florida intestate succession, summary administration, or the Florida probate process, the LAW OFFICE OF GARY M. LANDAU can assist families throughout Coral Springs and surrounding South Florida communities.

Whether you are preparing for a formal administration or summary administration, dealing with debts and creditor claims, have disputes involving heirs, or simply wonder about probate court procedures, a Florida probate attorney with years of experience can help you evaluate your legal options and next steps.

Schedule a Consultation with a Coral Springs, Florida Probate Attorney Today

Consult Florida probate attorney Gary M. Landau if you have questions about an affidavit of heirs or any other aspect of the probate process.

To discuss your probate or estate administration matter with the LAW OFFICE OF GARY M. LANDAU, schedule a consultation today by calling (954) 979-6566 or complete the online form to schedule a free consultation with the LAW OFFICE OF GARY M. LANDAU today.

At the LAW OFFICE OF GARY M. LANDAU, we assist clients throughout Coral Springs, Parkland, Broward County and all other counties in Florida With more than 25 years of experience in our practice areas and countless satisfied clients, attorney Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate title and closing needs in Coral Springs, Parkland, Boca Raton, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, want to change your deed, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at 954-979-6566 or complete our online form today to schedule a consultation at no cost. We happily work with our clients in person, over the phone, or on Zoom.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
954-979-6566
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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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