The article in last month’s issue discussed when it might be safe to assume that a person has died, including some of the options available to raise the level of certainty of that assumption. This month’s article discusses the next step in the process – identifying the heirs if the person has died intestate.
Once again, the method to be used depends on the nature of the title to be acquired, marketable or defensible. The previous article explains the difference and may be found here.
If you wish to acquire marketable title, we would recommend that you seek a judicial determination of the identities of the heirs at law, where available. In Pennsylvania, Ohio, Indiana and Illinois, there are statutorily-based procedures you must follow to do so, referenced in the table at the end of this article. The procedures in Ohio, Indiana and Illinois are not mandatory but can only be done as part of a probate action.
Ohio, Indiana and Illinois allow title to pass upon the filing of an instrument called an affidavit of heirship or affidavit of descent, but none of these affords the level of certainty of a judicial determination.
Pennsylvania is unique in that title transfers only by deed from the personal representative or by recording a decree of distribution entered by the orphans’ court filed pursuant to 20 PEF 3546.
Rather than go into a sufficiently detailed explanation of each of these types of proceedings, we would be glad to answer any question you may have in this regard.
Neither Kentucky nor West Virginia has any judicial procedure to establish heirs’ identities.
West Virginia requires the administrator (or executor if a testate estate) to file either his own affidavit or the affidavit “of some credible person” listing the names, addresses and relationship to the decedent of the persons who “would take any part of the estate.” This may not be conclusive proof of heirs’ identities, but it is sufficient to establish defensible title.
In Kentucky, title passes by intestate succession upon filing of an Affidavit of Descent. The requirements for a valid Affidavit of Descent are set forth at KRS 382.120. The risk in Kentucky, in relying exclusively on an Affidavit of Descent, is that it is not conclusive proof of ownership, and a purchaser for value takes the real estate subject to the claims of any undisclosed heirs. Sirls v. Jordan, 625 S. W. 2d 106, 108 (Ky. App. 1981). Consequently, an Affidavit of Descent is insufficient to establish marketable title, but it is sufficient to establish defensible title. If marketable title is the goal, the only alternative is to file a quiet title action.
In short, Ohio, Illinois and Indiana allow for judicial determinations of heirship, but only as part of an estate. Each of these states also permits identification of intestate heirs by affidavit. Pennsylvania requires a judicial proceeding to determine heirship, but one is available outside of probate. West Virginia requires the filing of an affidavit as part of the probate process, but also considers an affidavit of heirship filed outside of any probate proceeding as acceptable proof of intestate succession. Kentucky does not have any judicial method for identification of intestate heirs and an Affidavit of Descent in Kentucky is not conclusive proof of ownership.
In every state where an affidavit of heirship (or descent) is allowed, it is required before a deed conveying an inherited interest may be filed for record.
The applicable laws of the states in the Marcellus/Utica Shale and the Illinois Basin are as follows:
Affidavit of Heirship
Chapter 35, Section 3546
Title 21, section 2123
Title 3, section 317.22
No separate statute
755 ILCS 5/5-3
*While there is no separate statute listing the required contents of an affidavit of heirship, we recommend including the information required as part of the judicial determination.