(0:00:00) Welcome to another episode of the Air Search Brief with Norby Bandan, the founder of airpros.com. Today we're talking about a term that trips up attorneys, the affidavit of airship. Norby, what's the problem? Second, thanks Jessica for having me again. Second, the problem is that the same term gets used for two different things. And using it in the wrong context can cost an attorney valuable time.
(0:00:22) How about you start with the first meeting? In Texas and similar title theory states, an affidavit of heirship is curative title work. It's a notarized instrument recorded in the county deed records. No judge reviews it before it's recorded. It is not a court order. After a five-year waiting period, it's accepted as prima facie evidence. Section 203.001 of the Texas Estates Code says courts may receive that statement of family history once it has been of record for five years or more.
(0:00:53) Did I hear you correctly? So it's a title tool? Right. It clears title on uncontested real property when no formal probate is pending. That's the job. And the second meaning? If you can take that same document to a surrogate's court where heirship is unknown or contested, it won't be accepted. Of course, don't treat a notarized family history as proof of heirship. They want a kinship determination that's built on sworn genealogical evidence, unbiased witnesses, and a meticulously documented search.
(0:01:20) All right. That covers Texas. What does that look like in New York? Second kinship proceedings under Section 2225 of the Surrogates Court Procedure Act. They apply when distributes are unknown, missing or disputed. The court can presume a missing distributor is deceased, but only if that person hasn't been heard from for at least three years since the death. A diligent search was made and no evidence of life turned up.
(0:01:40) and to say there are no other heirs. Second, higher bar. Diligent and exhaustive efforts from all available sources, at least three years since the death, and no claim from anyone whose relationship isn't in the record. Second, these hearings usually involve a claimant carrying the burden of proof, a guardian ad litem for the unknown parties, and often expert genealogical testimony. The standard is preponderance of the evidence. The guardian ad litem's job is to refute the claimant's evidence
(0:02:08) So a statement from a family member isn't enough. A notarized, sworn statement from a family member is not equivalent to a kinship determination. Kinship determinations are built to survive cross-examination.
(0:02:19) Is Florida different? Second day middle path. In Florida, the affidavit of heirs is filed inside the court file, usually by the person petitioning to be personal representative. It has to show the statutory hierarchy, spouse, children, parents, siblings, and their descendants, grandparents, aunts, and uncles, every relative listed, including those who died before the decedent with dates of death. If you don't know whether a relative is living, writing, not applicable, will not do. And the fine has to show a diligent and reasonable inquiry.
(0:02:47) Norby, give me a scenario. Again, this is a composite, not a real case. Someone dies without a will owning property in Arizona and several financial accounts. Family interviews identify a niece and a nephew as the heirs. Title to the home transfers cleanly. Then the brokerage handling the accounts through formal probate hears from a sibling. The sibling says the niece and nephew aren't related by blood and that other siblings and descendants, including the sibling, were never mentioned.
(0:03:11) And the affidavit. I reckon it did its job for title. Nobody contested it, but nobody looked for other relatives before naming the niece and nephew. Notarized statements from people with a financial interest can't carry a family structure. Under Section 202.151 of the Texas Estates Code, testimony about heirs and family history in a proceeding to declare heirship generally comes from two disinterested and credible witnesses in open court. Interested parties don't count.
(0:03:36) So what should attorneys do? Second, four things. One, when someone asks for an affidavit of airship, ask a follow-up. Is it a recorded land instrument or a court filing? Everything depends on that answer. Second, two, plan for waiting periods, three years in New York.
(0:03:51) Five years on record in Texas. If a client needs fast distribution and heirs are missing, an informal affidavit won't help. And the clock for a formal determination starts at the date of death, not at filing. Second three, ask for negative findings, not just positive ones. A search showing what was not found is often more persuasive to a court. Second four, if there's any chance of a dispute or unlocated heir, use a professional genealogical researcher. Don't wait for a guardian ad let him to raise the issue.
(0:04:20) And the risk if they don't, Norby. A second-day personal representative can be held personally liable for missing an heir, especially when the search wasn't documented or thorough enough for the size and complexity of the estate. A distribution built on a documented search is much harder to challenge than one built on an informal affidavit with no sources. Where can listeners read more? The full article is on airpros.com. Look for the affidavit of heirship, what surrogates courts actually require.
(0:04:45) Norby, thanks for joining me again on this wonderful topic of Affidavit of Airship. To you listening to this podcast, thanks for listening to the Air Search Brief, and we hope you join us on our next episode.