Virginia Affidavit of Heirship: Form CC-1612, Filing, and Fees

A Virginia affidavit of heirship is a sworn document that heirs record with the circuit court clerk to show who inherited real estate from someone who died without a will. Authorized by Virginia Code § 64.2-510, the affidavit does not actually transfer ownership. Title passed to the heirs automatically at the moment of death under Virginia’s intestate succession rules. What the affidavit does is put that fact in the public land records, linking the deceased owner’s name to the new owners so the property can later be sold, refinanced, or insured.¹

When the Affidavit Is the Right Tool

The § 64.2-510 affidavit works only when the owner died intestate, meaning without a valid will. The statute’s own title says so: “Affidavit relating to real estate of intestate decedent.” If there is a will, this form does not apply, and the will needs to go through probate instead.¹

Anyone with an interest in the real estate can file, including an heir or a personal representative who has already qualified with the court. The affidavit covers only real property located in Virginia. It cannot be used for bank accounts, vehicles, or household belongings. There is no minimum or maximum value. If the only asset to deal with is a piece of Virginia real estate and there was no will, this affidavit lets the family avoid opening a full estate administration.²

Who to List as Heirs

Because the affidavit applies only to intestate estates, the people listed on it must be the heirs identified by Virginia Code § 64.2-200. Listing the wrong heirs or leaving someone out can create title problems that take years to fix. Virginia’s inheritance order for real estate works like this:³

Surviving spouse and no children from outside the marriage: the spouse inherits the entire estate, whether the couple had children together or no children at all.
Surviving spouse plus children from a prior relationship: the spouse receives one-third, and the remaining two-thirds is divided equally among all of the decedent’s children and their descendants.
Children but no spouse: everything passes to the children in equal shares, with a deceased child’s share going to that child’s own children.
No spouse and no children: the estate goes to the decedent’s parents, or to the surviving parent if only one is alive.
No spouse, children, or parents: siblings inherit, and a deceased sibling’s share passes to that sibling’s descendants.

The scenario that catches families off guard is the second one. When the deceased had children from a prior relationship, the surviving spouse does not inherit everything. The children collectively receive a two-thirds share, and every one of them must be named on the affidavit.

What Form CC-1612 Requires

Virginia requires the affidavit to be prepared on Form CC-1612, a standardized document from the Office of the Executive Secretary of the Supreme Court. A computer-generated version that matches the official layout is also acceptable. You can download the form from the Virginia court system’s website or pick one up from the clerk’s office where the property is located.⁴

The statute calls for three categories of information:¹

A brief description of the real estate the decedent owned at death, located within the jurisdiction where the affidavit will be recorded. This typically references a prior deed book and page number.
A statement that the decedent died without a will.
The names and last known addresses of all heirs at law.

The form itself also asks for the decedent’s name, date of death, and the relationship, address, and age of each heir. An attachment requires the person filing, called the “subscriber,” to state under oath that they made a diligent inquiry into the names, addresses, and ages of all heirs.⁵

One common misunderstanding: the affidavit does not need to be signed by disinterested witnesses. The subscriber can be someone with a direct interest in the property, including an heir. The subscriber signs under oath before a notary public, a clerk, or a deputy clerk, who verifies identity and administers the oath.⁴

How to File It

Gather the information first: the decedent’s name and date of death, a description of the property pulled from the most recent deed, and the full name, address, age, and relationship of every heir. Download Form CC-1612 from the Virginia court system’s fiduciary forms page or get a copy from the circuit court clerk.⁶

Fill out every field. Check the box showing your relationship to the property, either interested party or qualified personal representative. Complete the attachment affirming your diligent inquiry into who the heirs are. Then take the completed form to a notary, clerk, or deputy clerk to sign under oath. Once the notary applies the seal, the document is ready to record.

File the original notarized affidavit with the clerk of the circuit court in the county or city where the real estate sits. You can bring it in person during business hours or mail it with payment. Once accepted, the affidavit is recorded and indexed under both the decedent’s name and the heirs’ names, creating the public chain of title that future buyers and lenders will look for.¹ The clerk also sends an abstract to the local commissioner of the revenue, who updates the land books and reassesses the property in the heirs’ names.

What It Costs

Recording involves two separate fees. The first is the recording and indexing fee under Virginia Code § 17.1-275, which depends on length. The official circuit court fee schedule sets this at $14.50 for a document of 10 or fewer pages, $28.50 for 11 to 30 pages, and $48.50 for 31 or more pages.⁷

The second is a $25 fee under Virginia Code § 58.1-1717.1, charged in lieu of a probate tax whenever a real estate affidavit is recorded and no will has been probated or administration granted for the estate.⁸ For a typical affidavit under 10 pages, expect combined fees of about $39.50. Some jurisdictions may add small local fees, so confirming the total with the clerk’s office before mailing payment is wise.

The One-Year Wait Before Selling

Filing the affidavit does not erase the deceased person’s debts. If the personal assets are not enough to cover what the decedent owed, Virginia law makes the inherited real estate available to satisfy those debts.⁹

This matters most if you want to sell quickly. Under § 64.2-534, a sale by an heir within one year of the decedent’s death is not valid against the decedent’s creditors. A creditor could come forward and undo or claim against the sale during that first year. After the one-year mark, a sale is protected from creditor claims as long as no administration action has been started and no creditor has filed a report of debts with the court.¹⁰

This window is the single biggest practical constraint on heirs who want to sell. Title companies know about it and may decline to insure a sale that closes within a year of the death. If the decedent clearly had no significant debts, a buyer may still proceed, but the title risk is real and should be disclosed.

Medicaid and Mortgage Claims That Follow the Property

If the deceased received Medicaid benefits after age 55, Virginia’s Department of Medical Assistance Services can file a claim to recover those costs from the estate. For recovery purposes, “estate” includes all real and personal property the person held at death, including a home that was not counted when determining Medicaid eligibility.¹¹

Recovery is barred while the decedent has a surviving spouse, a child under 21, or a blind or disabled child. Once those protections no longer apply, DMAS can pursue a claim. Heirs who want to keep the property can contact DMAS to negotiate a payment plan. An undue hardship waiver is available when recovery would cause severe financial harm, such as the loss of a family farm, a modest homestead, or the survivor’s only source of income. A denied waiver request can be appealed within 30 days.¹¹

If the property carries a mortgage, the lender cannot call the loan due just because the owner died and title passed to an heir. The federal Garn-St. Germain Act bars lenders from enforcing a due-on-sale clause when a residential property with fewer than five dwelling units transfers to a relative because of the borrower’s death.¹² The heir can keep paying under the original loan terms and preserve whatever interest rate the decedent had locked in. The protection covers the ownership change only. It does not forgive missed payments or stop a foreclosure for default.

Tax Basis for the Heirs

Heirs who inherit real estate get a stepped-up basis. Under federal tax law, the property’s tax basis resets to its fair market value on the date of the owner’s death, instead of carrying over whatever the deceased originally paid.¹³

This matters when the property has appreciated over decades. If a parent bought a house for $60,000 in 1985 and it was worth $350,000 at death, the heir’s basis is $350,000. Sell for $360,000 and the taxable gain is $10,000, not the $290,000 that would have applied without the step-up. The step-up applies whether the property passes through probate or by affidavit of heirship. What triggers it is the death, not the method of transfer. Virginia itself does not impose a separate state estate tax or inheritance tax on most estates.

1
Virginia Code Commission. Virginia Code 64.2-510 – Affidavit Relating to Real Estate of Intestate Decedent
2
Virginia Code Commission. Virginia Code Title 64.2 – Wills, Trusts, and Fiduciaries
3
Virginia Code Commission. Virginia Code 64.2-200 – Course of Descents Generally
4
Virginia Judicial System. Virginia Code 64.2-510 – Real Estate Affidavit
5
Supreme Court of Virginia. Virginia Code 64.2-510 – Real Estate Affidavit
6
Virginia Court System. Circuit Court Fiduciary Forms
7
Virginia Judicial System. Circuit Court Fee Schedule
8
Virginia Code Commission. Virginia Code Title 58.1 – Tax in Lieu of Probate Tax
9
Virginia Code Commission. Virginia Code 64.2-532 – Real Estate of Decedent as Assets for Payment of Debts
10
Virginia Code Commission. Virginia Code Title 64.2 – Liability of Real Estate to Debts
11
Virginia Code Commission. 12VAC30-20-141 – Estate Recoveries
12
Office of the Law Revision Counsel. 12 U.S. Code 1701j-3 – Preemption of Due-on-Sale Prohibitions
13
Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent