What Is an Affidavit of Heirship in Florida? Uses and Limits

An affidavit of heirship in Florida is a notarized, sworn statement that identifies who should inherit a deceased person’s property under state intestacy law when there is no will. It documents the family tree for the public record and supports probate filings, but it does not, by itself, transfer title to real estate. Florida title insurance companies generally will not insure a sale or refinance based on the affidavit alone, so if real property is involved, some form of probate is almost always still required.

That gap between what the document says and what it can actually do is where most families get stuck. Used correctly, the affidavit is a useful first building block. Used as a substitute for probate, it leads to months of wasted effort.

What the Affidavit Does, and What It Doesn’t

The affidavit is a signed statement by someone with personal knowledge of the deceased’s family. It identifies the person who died, the date of death, the surviving spouse if any, and every child, parent, sibling, or more distant relative whose relationship could affect inheritance. Once notarized and recorded with the Clerk of the Circuit Court in the county where the property sits, it becomes part of the public record.

Recording the document does not vest title in the heirs the way a deed or a court order would. One major Florida title underwriter has stated directly that affidavits of heirship are not used for title-insuring purposes in Florida and that estate administration is needed to transfer real property.¹ So why file one at all? Three reasons. It supports a petition for summary administration or formal probate by documenting the family tree. It can help financial institutions release smaller personal-property accounts. And it preserves the heirs’ claim in the public record while more formal proceedings are pending or being decided on.

Information You Need to Include

Florida circuit courts publish sample forms that vary slightly by county, but they ask for essentially the same categories of information. Pull official records like birth certificates, marriage licenses, divorce decrees, and death certificates before you start, because every name and date in the affidavit should match the paperwork.

The deceased’s full legal name and date of death.
The current spouse’s name, age, and address, or that spouse’s name and date of death if deceased.²
Every former spouse with the date of divorce or death.³
Every biological and adopted child, including any who died before the deceased, along with that deceased child’s own descendants, because Florida distributes inheritances per stirpes and a grandchild may inherit through a deceased parent.⁴
Parents, siblings, nieces and nephews, and grandparents when the intestacy hierarchy reaches them.²

Two disinterested witnesses must sign alongside the affiant. These are people who knew the deceased and the family well enough to confirm the relationships but who have no financial stake in the estate: longtime friends, neighbors, colleagues. The affiant then signs in front of a notary public who verifies identity and applies a seal. Florida accepts both in-person and online notarization for this document.⁵

Recording the Affidavit

File the completed affidavit with the Clerk of the Circuit Court in the county where the real property is located. Recording fees are set by statute at $10 for the first page and $8.50 for each additional page.⁶ Certified copies run $1 per page plus a $2 certification fee. The clerk indexes the document in the county’s official records with a book and page number.

Recording puts the public on notice that the listed heirs claim an interest. It establishes the family history in the chain of title so a future buyer, lender, or court can see who the heirs are. It does not clear the chain of title the way a probate order does.

Why Title Companies Still Want Probate

This is where most people hit a wall. You record the affidavit, you believe the heirs are identified, you call a title company to list the property, and they ask for a court order.

The reason is risk. An affidavit is a sworn statement by a private individual, not a judicial finding. Unknown heirs, overlooked creditors, or an unrecorded will can surface later and create competing claims. Title insurance underwriters price against exactly those risks, and the Florida industry standard is that the affidavit alone is not enough.¹ Some form of estate administration is needed to produce a court order the title company will accept.

For smaller estates, that usually means summary administration. An estate qualifies when the total value subject to administration, minus exempt property, does not exceed $75,000, or when the deceased has been dead for more than two years regardless of estate value.⁷ Summary administration produces the court order a title company will accept and formally distributes the property. Attorney fees typically run between $1,800 and $4,000, compared with $5,000 to $20,000 or more for formal administration. The affidavit, which costs under $30 to record in most cases, does not replace this process. It supports it. When you open probate, the recorded affidavit documents the family tree upfront and can streamline the petition.

Florida’s disposition without administration procedure for very small intestate estates does exist, but it explicitly excludes real estate, so it isn’t a route around probate for property.⁸

Who Counts as an Heir Under Florida Law

Because the affidavit identifies heirs under intestate succession, the people you list are determined by statute. Get this wrong and the document loses its value.

If There Is a Surviving Spouse

The surviving spouse inherits the entire estate in two situations: when the deceased had no living descendants, or when all of the deceased’s descendants are also descendants of the surviving spouse and the surviving spouse has no children from another relationship.⁹

The spouse’s share drops to one-half in two other situations. First, if any of the deceased’s children are not also the spouse’s biological or adopted children. Second, even if all the deceased’s children are shared, the spouse only gets half if the spouse has other children from a different relationship.⁹ Blended families make this more complicated than most people expect.

If There Is No Surviving Spouse

Whatever portion does not pass to a spouse, or the full estate if there is none, moves through a set hierarchy: the deceased’s descendants first, then parents, then siblings and their descendants, and then more remote relatives like grandparents, aunts, uncles, and cousins.¹⁰

The Homestead Twist

Florida’s homestead protections catch many families off guard. When the deceased is survived by both a spouse and descendants, the homestead does not simply pass to the spouse outright. The surviving spouse receives a life estate in the home, and the descendants hold a vested remainder interest.¹¹ The spouse can live there for life but cannot sell without the descendants’ cooperation. If the home was owned as tenants by the entireties or in joint tenancy with right of survivorship, these rules do not apply because the property passes automatically to the surviving co-owner. The affidavit can document the life-estate-and-remainder arrangement, but a court order is still what the title company will look for before insuring a sale.

Penalties for False Statements

Signing an inaccurate affidavit is not a minor error. Florida classifies a false sworn statement in an official proceeding as a third-degree felony.¹²¹³¹⁴ Beyond the criminal exposure, a fraudulent affidavit can cloud title for years and invite civil liability from any heir who was wrongfully excluded. Verify every name, date, and relationship against official records before anyone signs.

1
First National Title Insurance Company. Underwriting Q and A – Does an Affidavit of Heirship Vest Title
2
Circuit Court of the Eighth Judicial Circuit of Florida. Affidavit of Heirs
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Ninth Judicial Circuit Court of Florida. Affidavit of Heirs
4
Florida Legislature. Florida Code 732.104 – Inheritance Per Stirpes
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Eleventh Judicial Circuit of Florida. Affidavit of Heirs
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Florida Legislature. Florida Code 28.24 – Service Charges by Clerk of the Circuit Court
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Florida Legislature. Florida Code 735.201 – Summary Administration; Nature of Proceedings
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Florida Legislature. Florida Code 735.304 – Disposition Without Administration of Intestate Property in Small Estates
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Florida Legislature. Florida Code 732.102 – Spouse’s Share of Intestate Estate
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Florida Legislature. Florida Code 732.103 – Share of Other Heirs
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Florida Legislature. Florida Code 732.401 – Descent of Homestead
12
Florida Legislature. Florida Code 837.02 – Perjury in Official Proceedings
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Florida Legislature. Florida Code 775.082 – Penalties; Applicability of Sentencing Structures; Mandatory Minimum Sentences
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Florida Legislature. Florida Code 775.083 – Fines