Affidavit of Heirship - The FAQ
What's an affidavit of heirship?
It's a signed statement, submitted to the court in a probate matter, setting forth information (facts) about the decedent's family.
Why is it submitted?
So that the probate judge can determine the decedent's heirs (closest relatives).
Why is heirship important?
Under Illinois law, heirs have certain rights in a probate matter, even if the decedent died with a Will and didn't leave property to the heirs. These rights involve notice of the proceedings, and the ability to intervene (for instance, to file a Will contest.)
And of course, if the decedent died without a Will, then the decedent's heirs inherit the decedent's property (pursuant to §2-1 of the Illinois Probate Act).
Who signs the affidavit?
The signer should be a person with knowledge of the decedent's family.
What are the relevant Illinois laws on the subject of heirship?
Section 5-3 of the Illinois Probate Act talks about the process of determining heirship -- so does Cook County Circuit Court Rule 12.2. Section 5-3 also talks about different ways in which heirship can be proved besides the use of an affidavit.
Anything else?
Affidavits of heirship can be tricky. It's one of the few probate documents for which there is no form (at least in Cook County) -- that's because almost every decedent's family situation is different. I think the key is to keep in mind something that Probate Judge Jeffrey Malak has said in seminars he's given: "I'm not a mind reader." You as the attorney need to make sure that the affidavit answers all questions, so that the judge feels he or she can enter an order declaring the decedent's heirship.
You really have to "tamp down" all portions of the affidavit.
-how many times was the decedent married?-if more than once, how did each marriage end?
-how many children were born or adopted in each marriage?
-how many children were born to or adopted by the decedent outside of marriage?
You follow this same procedure for every potential heir, as well.
What happens if some or all of the decedent's heirs are unknown?
You have to publish a notice for unknown heirs in a local newspaper.
What happens if the decedent simply had no heirs?
The decedent's property escheats to the government under §2-1(h) of the Illinois Probate Act.
