Affidavit of Descent in Kentucky: Filing, Heirs, and Taxes

An affidavit of descent in Kentucky is a sworn statement, filed with the county clerk, that identifies the heirs of someone who died without a will and the fractional share of real estate each heir inherited. Kentucky law requires it to be on record before any deed transferring that inherited property can be filed, so it is the first paperwork heirs deal with when they want to sell, mortgage, or otherwise convey land they inherited by intestate succession.¹

When the Affidavit Is Required

KRS 382.120 sets a simple rule: the county clerk cannot accept a deed conveying real property acquired by descent unless an affidavit of descent has first been presented for recording.¹ There is no separate deadline running from the date of death. The pressure is transactional. Until the affidavit is recorded, nothing else can move.

The reason is a gap in the public record. When a Kentucky property owner dies intestate, title passes to the legal heirs immediately by operation of law, but the deed books still show the deceased as the last owner. A title examiner has no way to know who owns the land now. The affidavit closes that gap by naming the heirs and their shares in the same records where deeds live.

Failing to file the affidavit does not carry a fine. It just freezes the property. Buyers back away from title histories with unexplained gaps, and lenders will not write mortgages against them, which makes the affidavit effectively mandatory for anyone who wants to do something with the land.

Who Inherits Under Kentucky Intestacy Law

The affidavit must list each heir’s name, relationship to the deceased, and the fractional interest inherited, so you have to work out who the heirs are before you can complete the form. KRS 391.010 sets the order of descent for real estate when there is no will.²

A surviving spouse takes a share of the real estate. Kentucky’s dower and curtesy rules under KRS Chapter 392 give the surviving spouse an additional guaranteed interest in the deceased spouse’s property.
Children take the remaining share equally. If a child died before the property owner, that child’s share passes to their own children.
If there are no children or grandchildren, the property passes to the deceased’s parents.
If no parents survive, it goes to siblings. Half-siblings and their descendants inherit half as much as full-blood siblings.
If none of those survive, Kentucky traces further out through grandparents, aunts and uncles, and more distant kin, splitting between the paternal and maternal sides.

Most affidavit problems start here. Missing an heir does not extinguish that heir’s interest; it just means the affidavit is incomplete and the title is weaker than it appears. Prior marriages, children the family did not know about, and heirs of a deceased child are the usual causes of trouble.

What the Affidavit Must Contain

KRS 382.120 lists six categories of information:¹

The full legal name of the deceased, called the “ancestor” in the statute.
The date of death, which fixes when the property interest transferred to the heirs.
Marital status at death, and if the deceased was married, the surviving spouse’s name and address.
The deceased’s last known place of residence, if the signer knows it.
A statement that the deceased died without a valid will.
The name, age, address, relationship, and specific fractional interest of every heir.

The statute does not require a legal description of the property. Most county clerk forms include one anyway, along with a reference to the deed book and page where the property was last recorded, because that information is what makes the affidavit useful to a title examiner later.

Who Can Sign

The affidavit can be signed by the person conveying the property, by any one heir of the deceased, or by any single next of kin.¹ If none of those are available, two Kentucky residents with personal knowledge of the facts can sign instead. The signer does not have to be a disinterested party. An heir who benefits from the transfer can sign alone. The signature must be notarized.

County clerk offices are the best source for the actual form. Layouts vary from county to county, but every version covers the same statutory items.

Filing With the County Clerk

File the completed, notarized affidavit with the county clerk in the county where the real property sits.¹ In person or by mail both work. Timing matters only in one direction: the affidavit has to be on file at or before the moment the deed is presented for recording, because the clerk is required to reject the deed otherwise.

The clerk records the affidavit in the deed books and indexes the deceased as grantor and each heir as grantee, as if the deceased had actually deeded the property to the heirs.¹ That indexing is what a future title search will pick up.

The recording fee is the same as for a deed. In most Kentucky counties that runs around $50, with an additional charge of about $3 per page beyond the first five.³⁴ Fees do vary, so confirm with the specific clerk’s office before you file.

What the Affidavit Does and Doesn’t Give You

Recording the affidavit gives the heirs defensible title, not marketable title. That distinction matters. The affidavit is an unsworn statement by an interested party, not a court order and not conclusive proof of ownership. If it fails to name an heir, that heir’s interest still exists, and a buyer who relied on the affidavit takes the property subject to that claim.

For most families, defensible title is enough. When the heirs are all known and no one disputes the inheritance, the affidavit clears the path for a sale without a court proceeding, and title insurance companies routinely insure properties transferred this way.

When the family situation is unclear or heirs disagree, the alternative is a quiet title action in the circuit court of the county where the property sits. Anyone with legal title and possession can bring one, and the resulting judgment settles ownership definitively. It costs more and takes longer than an affidavit, but for a valuable property or a disputed inheritance, the court judgment is worth the expense.

Tax Consequences of Inherited Kentucky Property

Federal Stepped-Up Basis

Federal law resets the tax basis of inherited real estate to its fair market value on the date the owner died.⁵ If the deceased paid $80,000 for a house that was worth $250,000 at death, your basis is $250,000. Sell soon after for $250,000, and there is no capital gains tax. This applies whether the property passed by will or by intestacy.

Get an appraisal at or near the date of death. If the IRS ever questions your basis, the contemporaneous appraisal is the evidence you want. Trying to reconstruct fair market value years later is much harder.

Kentucky Inheritance Tax

Kentucky has no estate tax but does levy an inheritance tax on some beneficiaries. Class A beneficiaries, which cover spouses, children, grandchildren, parents, and siblings, are fully exempt.⁶ Because intestate real estate almost always passes to exactly those relatives, the typical affidavit of descent filer will not owe inheritance tax.

More distant relatives and non-family beneficiaries pay between 4% and 16%, depending on relationship and amount. Class B beneficiaries such as nieces, nephews, aunts, and uncles get a $1,000 exemption. Class C beneficiaries, meaning everyone else, get only a $500 exemption.⁶ The inheritance tax obligation is independent of the affidavit; filing the affidavit does not create the tax, and skipping the affidavit does not avoid it.

1
Kentucky Legislative Research Commission. Kentucky Code 382.120 – Real Property Acquired by Descent
2
Kentucky Legislative Research Commission. Kentucky Code 391.010 – Descent of Real Estate
3
Warren County Clerk. Recording Fees
4
Daviess County Clerk. Current Recording Fees
5
Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent
6
Kentucky Department of Revenue. A Guide to Kentucky Inheritance and Estate Taxes