Indiana Affidavit of Heirship: Requirements, Recording, and Limits

An Indiana affidavit of heirship is a sworn statement, recorded with the county, that establishes who inherited a deceased person’s Indiana real estate so the property can be treated as theirs without opening a full probate. Under Indiana Code 29-1-7-23, once the affidavit is recorded it becomes prima facie evidence that ownership passed to the people named in it, which is generally enough for county assessors, title companies, and future buyers to work with.¹ It works whether the decedent died with a will or without one.

When the Affidavit Applies

Indiana Code 29-1-7-23(b)(6) allows the affidavit to explain how property passed either through intestate succession or through a will that has been admitted to probate.¹ If there was a will, the affidavit has to name the court that admitted it and the date of that order.

The tool is limited to real property located in Indiana. It does not transfer bank accounts, vehicles, or other personal property, and it is not a way to resolve a fight among heirs. Any person with knowledge of the decedent’s family and property history can serve as the affiant, but the statute requires that person to state their relationship to the decedent.

What the Affidavit Must Include

The statute uses the word “may” for the list of contents, so the items are permissive rather than strictly required. In practice, including all of them is what makes county officials, title insurers, and later buyers accept the document without pushback.¹

The decedent’s full name and date of death.
The affiant’s relationship to the decedent.
A description of the deeds or other instruments that gave the decedent an ownership interest, with cross-references to the county recorder’s office.
The property’s legal description, copied exactly from the most recent recorded deed. A street address is not a legal description; you need the lot, block, subdivision, or metes-and-bounds language.
Every distributee known to the affiant.
How each interest passed: through intestacy, or through a probated will (with the court and date).
If the property splits among multiple heirs, how those fractional shares were calculated.

Legal descriptions are where most affidavits go wrong. Pull the language character for character from the recorded deed itself. The county assessor’s property card or your current tax bill can help you find the right deed to reference.²

Getting the Fractional Shares Right

When the decedent died without a will, the shares stated in the affidavit have to match Indiana’s intestacy formula. Wrong percentages create title problems that surface years later at a sale or refinance. The rules turn on who survived the decedent.³

If a spouse survives:

Spouse plus children: the spouse takes one-half of the net estate; the children split the other half equally, and grandchildren of a deceased child take their parent’s share.
Spouse plus parents, no children: the spouse takes three-fourths; the surviving parent or parents split the remaining one-fourth.
Spouse alone, with no children or parents: the spouse takes everything.

A separate rule applies to a second or later spouse who never had children with the decedent, when children from an earlier marriage survive. That spouse receives only 25% of the fair market value of the decedent’s real property, minus liens, and the children from the earlier marriage inherit the rest of the real property immediately at death.³ This is the scenario families most often calculate incorrectly, and a title company will reject an affidavit that gets it wrong.

With no surviving spouse, children inherit everything in equal shares. If there are no children either, the estate passes to the decedent’s parents and siblings, each surviving parent counting equal in rank to a sibling but guaranteed at least one-fourth of the estate.

Formatting and Notarization

Indiana Code 36-2-11-16.5 sets physical standards that a county recorder can enforce by rejecting the document:⁴

White paper, at least 20-pound weight, no larger than 8.5 by 14 inches.
First and last pages: at least two-inch top and bottom margins, half-inch side margins.
Middle pages: at least half-inch margins all around.
Typewritten or computer-generated text in black ink, minimum 10-point font.

Every document recorded in Indiana also needs a Social Security number redaction statement near the end, just before or after the preparer’s name. The required language reads: “I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law.”⁵ Missing that statement is a common reason documents get bounced at the recording window.

Because the document is an affidavit, the affiant signs it under oath in front of a notary, who verifies identity and applies a seal. Some county recorders keep blank forms at the counter, and similar templates circulate through legal document services, though an attorney familiar with Indiana property law can adapt the affidavit to a specific family.⁶

Recording It with the County

File the completed affidavit in the county where the real property sits. Two offices are involved: the county auditor and the county recorder.

The auditor endorses the affidavit as exempt from the sales disclosure form requirement and updates tax records by entering the distributees’ names on the county tax duplicate, as Indiana Code 29-1-7-23(c) directs.¹ The transfer fee is typically around $10 per parcel.

After the auditor’s endorsement, the recorder records the affidavit and indexes it as the most recent instrument transferring the property.¹ Recording fees vary. Shelby County, as a rough benchmark, charges $25 for the first page of a deed or similar instrument, plus $5 for each additional oversize page.⁷ Call your county recorder or check its website for the current rate.

Once recorded, the affidavit becomes part of the public land records. The named heirs can then sell the property, borrow against it, or pass it to their own heirs, and the recording gives public notice to anyone later searching the chain of title.

The Seven-Month Rule

A common misunderstanding is that you must wait seven months after the death before recording. Nothing in the statute stops you from recording earlier. The seven-month period in Indiana Code 29-1-7-23(f) does something different: after seven months, if no court has issued letters testamentary or letters of administration and no court has ordered otherwise, anyone may rely on the affidavit as evidence that the property cannot be sold by an executor or administrator to pay the decedent’s unsecured debts.⁸

Practically, unsecured debts that are not already recorded liens in the property’s county cannot reach the real estate once those conditions are met. Recorded liens like mortgages and judgment liens are unaffected and stay with the property. Many attorneys advise waiting the full seven months before recording, to lock in that protection, even though the statute does not require the wait.

What the Affidavit Cannot Do

An affidavit of heirship is not a court order. It creates a rebuttable presumption of ownership, which means an unknown heir or a creditor with a competing claim can still challenge it, though that presumption grows stronger the longer the affidavit sits unchallenged. Title insurance companies generally accept a properly recorded affidavit to clear title, but individual underwriters may want a death certificate, proof no probate was opened, or signatures from every named heir on any eventual deed of sale.

The affidavit will not settle a dispute among heirs, because it has no way to adjudicate competing claims. Those cases need a probate proceeding or a separate court action. If debts exceed the estate, a formal administration may be needed to work through creditor claims before real estate can pass cleanly.

It also does not shield the property from Medicaid Estate Recovery. If the decedent received Medicaid benefits after age 55 or while in a nursing facility, Indiana’s program may pursue the real estate to recoup those costs, subject to federal protections for a surviving spouse, a child under 21, or a child who is blind or permanently disabled.⁹ A lien search in the property’s county will show whether the state has already asserted a claim, and consulting a probate or elder law attorney before recording is worth the cost in that situation.

Attorney preparation of the affidavit typically runs a few hundred dollars and is a reasonable investment when the family tree is complicated, the decedent was married more than once, or the property is valuable. That cost is small next to fixing a title defect discovered years later at a closing.

1
Indiana General Assembly. Indiana Code 29-1-7-23 – Real and Personal Property; Devolution
2
Indy.gov. Record Your Deed
3
Indiana General Assembly. Indiana Code Title 29 Probate 29-1-2-1
4
Indiana General Assembly. Indiana Code 36-2-11-16.5 – Requirements for Instrument or Document
5
Indiana General Assembly. Indiana Code 36-2-11-15 – Instruments That May Be Received for Recording or Filing
6
indy.gov. Record a Survivorship Affidavit
7
State of Indiana. Shelby County Recorder Fee Schedule and Recording Requirements
8
Indiana General Assembly. Indiana Code Title 29 Probate 29-1-7-23
9
Office of the Law Revision Counsel. 42 USC 1396p Liens, Adjustments and Recoveries, and Transfers of Assets